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TABLE OF CONTENTS 5. Double Taxation.......................................
44 6. Exemption from Taxation ...................... 45CONSTITUTIONAL .............................. 1 7. Escape from Taxation ............................. 46 8. Equitable Recoupment ............................ 49LAW 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 ................. 90B. 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) ........ 91C. 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 .............................................................................. 91D. 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 SpeakerE. 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 ............. 96F. 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 .................... 98G. 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 AutonomyH. 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 ................................ 104I. 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 Members108J. 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 ContractVII. BILL OF RIGHTS ........................ 115 Under the Constitution ................................... 129VIII. 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................................................... 144IX. NATIONAL ECONOMY AND I. BILL OF RIGHTS ............................ 145PATRIMONY .......................................... 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................................... 188B. 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 .......................... 189C. 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 ............... 191D. Privacy of Communications and 1. Extent of the Right ................................ 191Correspondence .................................................... 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............................................... 193D. 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 ............................... 166E. 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 PUBLICF. 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 JUREG. Right to Information................................... 173 OFFICERS ............................................... 223 1. Scope and Limitations............................ 174 1. De Facto Officers............................................. 223H. 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 ............................................... 239I. Right to Association .................................... 178 A. Discipline...................................................... 239 1. Scope and Limitations............................ 178 1. Grounds................................................... 239J. 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 ................... 240Assistance ............................................................... 180 4. Condonation doctrine............................ 245L. 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.... 248M. 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 ................................................................. 349ELECTION 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.............................................................. 380LOCAL GOVERNMENTS ................. 320 VI. GENERAL PRINCIPLES OF I. PRINCIPLES OF LOCAL AUTONOMY TREATY LAW.......................................... 381 ................................................................... 321 VII. DOCTRINE OF STATERESPONSIBILITY.................................. 387VIII. REFUGEES .................................... 393IX. EXTRADITION ................................ 395 1. How To Enforce the International Responsibility arising from the International Delinquency ...................................................... 395 Local remedies do not need to be exhausted where: ................................................................. 396X. BASIC PRINCIPLES OFINTERNATIONAL HUMAN RIGHTSLAW .......................................................... 398XI. BASIC PRINCIPLES OFINTERNATIONAL HUMANITARIANLAW .......................................................... 401XII. 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) ........................................................... 410XIII. INTERNATIONALENVIRONMENTAL LAW..................... 411 CONSTITUTIONALLAW 1POLITICAL 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 treatyA. Declaration of Principles and obligations. State of Policies Transformation: Requires that an international law be transformed into aArticle II, 1987 Constitution: Declaration of domestic law through a constitutionalPrinciples and State Policies mechanism such as local legislation.Sections 1-6: Binding rules which must be Incorporation: When, by mere constitutionalobserved 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 ofGeneral Rule: Article II of the Constitution is international law" - norms of general ornot intended to be self-executing principles customary international law which are bindingready 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 due101083 (1993)] process, andThe Philippines is a Democratic and International customary rules are accepted asRepublican 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 theThe Philippines, under the 1987 Constitution, is opinion juris sive necessitates (opinionnot 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 SupremacyRenunciation 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 1987Only refers to wars of aggression, not Constitution with the President asdefensive 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 CONSTITUTIONAL LAW I POLITICAL LAWorder 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 Policya. Protector of the people and the State SECTION 7, ARTICLE II. The State shall pursue anb. Secure the sovereignty of the State and the independent foreign policy. In its relations with otherintegrity of the national territory states the paramount consideration shall be national sovereignty, territorial integrity, national interest, andCompulsory 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 andwas placed in lieu of "with due regard for pursues a policy of freedom from nuclear weaponsobjections of conscience" and was intended to in its territory.give to Congress a flexible guideline for dealingwith conscientious objectors [Bernas]. The ban on nuclear arms includes not onlyMaintenance of Peace and Order, possessing, controlling and manufacturingPromotion 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 freeRecognition of Hierarchy of Rights [Bernas; the people from poverty through policies that provideSection 5, supra] adequate social services, promote full employment,a. Life a rising standard of living, and an improved qualityb. Liberty of life for all.c. Property Promote Social Justice in All Phases ofSeparation 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 Rightsto members of said religious sects cannot byitself render the Act unconstitutional, for the Act SECTION 11, ARTICLE II. The State values the dignity of every human person and guarantees fullonly restores to them their freedom of respect for human rights.association which closed shop agreementshave taken away and puts them in the sameplane as the other workers who are not Family as Basic Social Institution andprohibited by their religion from joining labor Natural and Primary Right and Duty ofunions [Victoriano v. Elizalde Rope Workers, Parents in the Rearing of the YouthG.R. No. L-25246 (1974)]. SECTION 12, ARTICLE II. The State recognizes the sanctity of family life and shall protect andThe duty of the state to inculcate values of strengthen the family as a basic autonomous socialpatriotism and nationalism such as a flag salute institution. It shall equally protect the life of thecannot intrude into other fundamental rights, mother and the life of the unborn from conception.
Page 3 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 andThe right and duty referred to here is primary, evidence [Imbong v. Ochoa, supra].not exclusive. Vital Role of Youth in Nation-BuildingDoctrine of Parens Patriae SECTION 13, ARTICLE II. The State recognizes theParens patriae holds the State under obligation vital role of the youth in nation-building and shallto provide protection and look after the welfare promote and protect their physical, moral, spiritual, intellectual, and social well-being. It shall inculcateof its people especially those who cannot tend in the youth patriotism and nationalism, andto themselves. Parens patriae means parent of encourage their involvement in public and civichis or her country, and refers to the State in its affairs.role as "sovereign", or the State in its capacityas a provider of protection to those unable tocare for themselves [Southern Luzon Drug Role of Women in Nation BuildingCorporation v. DSWD, G.R. No. 199669 Fundamental Equality Before the Law of(2017)]. Women and Men SECTION 14, ARTICLE II. The State recognizes theThe State, as parens patriae, has an inherent role of women in nation-building, and shall ensureright to aid parents in the moral development of the fundamental equality before the law of womenthe youth. Hence, the provision in the RH Law and men.mandating the teaching of age- anddevelopment- appropriate reproductive health Right to Healtheducation is not per se unconstitutional; a SECTION 15, ARTICLE II. The State shall protectruling on its constitutionality would be and promote the right to health of the people andpremature 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 EcologyQuezon City’s imposed curfew does not violate SECTION 16, ARTICLE II. The State shall protectSection 12, Article II of the Constitution and advance the right of the people to a balancedbecause the curfew was done within the role of and healthful ecology in accord with the rhythm andthe State as parens patriae. While parents harmony of nature.have a primary role in raising a child, “whenactions concerning the child have a relation to Citizens have a public right to a balanced andthe public welfare or the well-being of the child, healthful ecology, the right of which need notthe State may act to promote these legitimate be written in the Constitution for it is assumedinterests”, especially in cases that may bring to be an issue of transcendental importanceharm to a child or to public safety. This with intergenerational implications. Such rightoverrides a parent’s right to control upbringing carries with it the correlative duty to refrain fromof 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, butrather complementary to parental supervision. Priority to Education, Science, andThe Curfew Ordinances merely serve as legal Technology, Arts, Culture, and Sportsrestrictions designed to aid parents in SECTION 17, ARTICLE II. The State shall givepromoting 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 andthis is necessary because the youth is nationalism, accelerate social progress, andvulnerable and inexperienced, and “their moral promote total human liberation and development.well-being is likewise imperiled as minorchildren are prone to making detrimentaldecisions” [SPARK v. Quezon City, G.R. No.225442 (2017)]. Page 4 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWLabor 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 aSelf-Reliant and Independent National judicially enforceable constitutional right butEconomy 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 ServiceRole 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 DisclosureComprehensive Rural Development and SECTION 28, ARTICLE II. Subject to reasonableAgrarian 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 TerritoryRecognition and Promotion of Rights ofIndigenous 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. GovernmentCommunity-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 islandsRule 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. ItAutonomy 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 andProhibition 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWTreaty 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 isMethods of Baseline Determination a statutory tool to demarcate the maritime zoneBaselines laws such as R.A. No. 9522 are and continental shelf of the Philippines underenacted by United Nations Convention on the UNCLOS III and does not alter the nationalLaw of the Seas III (UNCLOS III) State parties territory. (2) While UNCLOS III does not bindto 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 notstraight or contoured, to serve as geographic abandon the country's claim to Sabah, as itstarting 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 lawsplay no role in the acquisition, enlargement or, R.A. No. 9522 uses the framework of regime ofas petitioners claim, diminution of territory. islands in determining the maritime zones of the Kalayaan Island Group (KIG) andUNCLOS III has nothing to do with the Scarborough Shoal. Regime of islands refers toacquisition (or loss) of territory. It is a any natural formed area of land surrounded bymultilateral treaty regulating, among others, water that generate their own applicablesea-use rights over maritime zones (i.e., the maritime zone [UNCLOS III].territorial waters [12 nautical miles from thebaselines], contiguous zone [24 nautical miles Straight baseline method — Consists offrom the baselines], exclusive economic zone drawing straight lines connecting appropriate[200 nautical miles from the baselines]), and points on the coast without departing to anycontinental shelves that UNCLOS III delimits. appreciable extent from the general direction of the coast, in order to delineate the internalUNCLOS III was the culmination of decades waters from the territorial waters of anlong negotiations among United Nations archipelago. (Note: This is the methodmembers to codify norms regulating the prescribed under the UNCLOS)conduct of States in the world's oceans andsubmarine areas, recognizing coastal and R.A. No. 9522 amends R.A. No. 3046 (asarchipelagic States' graduated authority over a amended by R.A. No. 5446). R.A. No. 3046limited span of waters and submarine lands determined appropriate points of the outermostalong their coasts. XXX Under traditional islands of the archipelago, then connectedinternational law typology, States acquire (or them by means of a straight line until all islandsconversely, lose) territory through occupation, were surrounded or enclosed by the imaginary Page 6 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWlines. R.A. No. 5446 states that the definition of Political Question Doctrinethe baselines of the territorial sea of the A question in which resolution has been vestedPhilippine Archipelago is without prejudice to by the Constitution exclusively in the people, orthe delineation of the baselines of the territorial in which full discretionary authority has beensea around the territory of Sabah, situated in delegated to a co-equal branch of theNorth Borneo, over which the Republic of the government (separation of powers) cannot bePhilippines has acquired dominion and decided upon by the Courts.sovereignty. This is as opposed to a justiciable questionC. 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 fundamentalprinciple in our system of government and is Applicationfounded on the belief that, by establishing A. Belgica v. Ochoa, supraequilibrium among the three (3) power holders, The Pork Barrel System violates the separationharmony will result and power will not be of powers because it is a form of postconcentrated 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 legislativeunconstitutional and void [Belgica v. Ochoa, encroachment upon the executivesupra]. prerogative of implementing the law, by giving individual legislators: (a) TheEach of the three branches of government has power to determine projects after theexclusive cognizance of and is supreme in General Appropriations Act (GAA) ismatters falling within its constitutionally passed; and (b) through congressionalallocated sphere; each branch cannot invade committees, authority in the areas ofthe domain of others. Powers of the fund release and realignment, thegovernment are separated to avoid system encroaches on the Executive’sconcentration of powers in any one branch power to implement the law.[Gatmaytan]. 2. Furthermore, identification of a project by a legislator being a mandatoryThree (3) branches of the Philippine requirement before his PDAF can begovernment: 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. 225973The principle of separation of powers ordains (2016)that each of the three government branches In allowing the internment of Marcos at thehas exclusive cognizance of and is supreme in LNMB, which is a land of the public domainconcerns falling within its own constitutionally devoted for national military cemetery andallocated sphere. It intends to secure action, to military shrine purposes, President Duterteforestall over-action, to prevent despotism, and decided a question of policy based on histo promote efficiency. wisdom that it shall promote national healing and forgiveness. There being no taint of graveWhile 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 politicalactual division in the Constitution (found in question is outside the ambit of judicial review.Section 1 of Articles VI, VII, and VIII). Eachdepartment 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 isCommission, 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWno right to directly decide matters over which 1. Scrutiny: Congress’ power offull discretionary authority has been delegated appropriation, i.e. budget hearings, andto the Executive Branch of the Government. power of confirmation 2. Investigation and monitoring ofD. OCA v. Reyes, A.M. No. P-08- 2535 (2010) implementation of laws: Using itsLegislative power cannot limit the Court’s power to conduct inquiries in aid ofpower 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 restrictthe Court’s power to preserve and maintain the Note: A fuller discussion on congressionalJudiciary’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 Supremeimposing strict and rigid standards of decency Court "[adopting] the separate opinion ofand propriety governing the conduct of justices, Justice Reynato S. Puno as part of thejudges and court employees. ponencia on the unconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar asE. Angara v. Electoral Commission, supra they relate to the creation of and the powersThe separation of powers is a fundamental given to the Joint Congressional Oversightprinciple in our system of government. It Committee."obtains not through express provision but byactual division in our Constitution. Each A legislative veto, i.e. statutory provision (whichdepartment of the government has exclusive may take the form of a congressional oversightcognizance of matters within its jurisdiction, committee) that requires the President or anand is supreme within its own sphere. But it agency to submit the proposed implementingdoes not follow from the fact that the three rules and regulations of a law to Congress forpowers 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 Congressunrestrained and independent of each other. to take a direct role in the enforcementThe Constitution has provided for an elaborate of its laws;system of checks and balances to secure 2. The Judiciary: Administrativecoordination in the workings of the various issuances enjoy a presumption ofdepartments of the government. validity, and only the courts may decide whether or not they conform to statutesD. Checks and Balances or the Constitution [Abakada Guro Partylist v. Purisima, supra]Corollary to Separation of Powers: Prevents Applicationauthority from being concentrated in one The Pork Barrel system is unconstitutional,branch. Each branch is supreme within their among others, because it violates the systemown 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-sumpowers are to be kept separate and distinct that appropriations, the actual projectsthe Constitution intended them to be absolutely under each congressman’s PDAF areunrestrained and independent of each other. determined by the congressman onlyThe Constitution has provided for an elaborate after the GAA is passed. The presidentsystem of checks and balances to secure then would not be able to discerncoordination in the workings of the various whether or not he should veto thedepartments of the government [Angara v. appropriation.Electoral Commission, supra]. 2. It has a detrimental effect on Congressional Oversight. BecauseCongressional oversight is not per se violative, legislators effectively intervene inbut is integral to separation of powers. project implementation, it becomesHowever, 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 DeputyOmbudsman, is unconstitutional. Subjecting Exception: When the State consents to bethe Deputy Ombudsman to discipline and sued.removal by the President, whose own alteregos and officials in the Executive department How consent is given:are subject to the Ombudsman’s disciplinary 1. Expressauthority, cannot but seriously place at risk the a. Through general law; orindependence of the Office of the Ombudsman b. Through special lawitself. Section 8(2) of R.A. No. 6770 intruded 2. Impliedupon the constitutionally-granted a. When the State enter into businessindependence of the Office of the Ombudsman. contracts with individualsBy so doing, the law directly collided not only (performing proprietary functions);with the independence that the Constitution b. When the State commencesguarantees to the Office of the Ombudsman, litigation and becomes vulnerablebut inevitably with the principle of checks and to counterclaim;balances that the creation of an Ombudsman c. When it would be inequitable foroffice seeks to revitalize. What is true for the the State to invoke immunity; andOmbudsman must equally and necessarily be d. In eminent domain cases.true for her Deputies who act as agents of theOmbudsman in the performance of their duties. Money claimsThe Ombudsman can hardly be expected to When a money judgment is given against theplace her complete trust in her subordinate government, the ordinary rule for executionofficials who are not as independent as she is, would not apply, for the consent of theif only because they are subject to pressures government to be sued is only up to the pointand controls external to her Office [Gonzales III of judgment. If it does not pay, it cannot bev. Office of the President, G.R. No. 196231 compelled to pay by attachment or otherwise.(2014)]. StateE. State Immunity A community of persons, more or less numerous, permanently occupying a definiteSummary of Rule portion of territory, independent of external control, and possessing a government to whichGeneral 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWTwo Theories of Sovereign Immunity [US v. an action in rem that does not name theRuiz, 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 sovereignequality found in Article 2(1) of the UN Charter Official Capacity vs. Personal Capacityas well as generally accepted principles of The doctrine of non-suability applies only ininternational 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 AuthorityA suit against the state will only prosper if the When officials, while discharging their officialstate gives its express consent. functions, commit acts that are beyond their scope of authority (i.e. police forces firing uponWhen is a suit considered a suit against the civilians and killing them, mistakenly believingState? 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. disbursem*nt 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. 206510When 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 Consent2. 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 the3. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWa. Money claims arising from contract 3. Liability under the Localexpress 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 onlyb. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 governmentb. 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 fundNote: 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 officergovernment owned and controlled corporation. impleaded may satisfy by himself withoutUnder Section 6(i) of PD No. 757, which was the State having to do a positive act toits 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 violatedbe 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 Consentby general or special law, may limit the Consent to be sued is not a concession ofclaimant's action only up to the completion of liability. Suability depends on the consent of the Page 12 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWState to be sued, and liability on the applicable its use or the manner of its exercise whichlaw and the established facts. The determines the validity of its delegation.circ*mstance that a State is suable does notnecessarily mean that it is liable, but it can General Rule: Only Congress (as a body) maynever be held liable if it does not first consent exercise legislative power.to be sued. When the State does waive itssovereign immunity, it is only giving the plaintiff Exceptionsthe chance to prove that it is liable [USA v. a. Delegated legislative power to localGuinto, G.R. No. 76607 (1990)]. governments: Local governments, as anEstoppel 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 alsoor 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 theException: Estoppel may not be invoked coverage of legislative powers delegated towhere they would operate to defeat the autonomous regions via the latter’s organiceffective operation of a policy adopted to acts].protect the public, or in those special caseswhere the interest of justice clearly required it. b. Constitutionally-grafted ExceptionsRespondent had already acquired a vested i. Emergency power delegated to the Executiveright on the tax classification of its San Mig during the State of War or National EmergencyLight as a new brand. To allow petitioner to [Section 23(2), Article VI, 1987 Constitution];change its position will result in deficiency andassessments in substantial amounts against ii. Certain taxing powers of the Presidentrespondent to the latter's prejudice [Section 28(2), Article VI, 1987 Constitution].[Commissioner of Internal Revenue v. SanMiguel Corporation, G.R. Nos. 205045 & The Congress may authorize the President to205723 (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 wharfa*ge dues, and other duties orRule of Non-Delegation of Legislative imposts within the framework of the nationalPower development program of the Government.Principle: Delegata potestas non potestdelegari – What has been delegated can no c. The extent reserved to the people by thelonger be delegated. provision on initiative and referendum [Section 1, Article VI, 1987 Constitution].Rationale: Since the powers of thegovernment have been delegated to them by Subordinate legislation made bythe people, who possess original sovereignty, administrative agenciesthese powers cannot be further delegated by The principle of non- delegability should not bethe different government departments to some confused with the delegated rule-makingother 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 detailsdelegating are those which are strictly, or of the law; or (b) ascertaining facts to bring theinherently and exclusively, legislative. Purely law into actual operation.legislative power which can never be delegatedis the authority to make a complete law - Traditional/Simplified Formulation: Whocomplete as to the time when it shall take effect may exercise legislative powers:and as to whom it shall be applicable, and todetermine 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWExceptions: 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 is2. Delegation to the Local governments sufficient if it defines legislative policy, marks its3. 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 circ*mstances 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 equity4. 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 in5. 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 toNote: The President did not proclaim a national administrative agencies).emergency, only a state of emergency in thethree places in ARMM. And she did not actpursuant to any law enacted by Congress that G. Fundamental Powers of theauthorized her to exercise extraordinary Statepowers. The calling out of the armed forces toprevent 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, thesevests in the President. She did not need can be exercised even without being expresslycongressional 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; andCongress to delegate to regional or local 3. Taxationlegislative bodies the power to create localgovernment units. However, under its plenary 1. Police Powerlegislative powers, Congress can delegate to It is the inherent and plenary power of the Statelocal legislative bodies the power to create which enables it to prohibit all that is hurtful tolocal government units, subject to reasonable the comfort, safety and welfare of societystandards and provided no conflict arises with [Ermita-Malate Hotel and Motel Operatorsany 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 thepower 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 thepolicy to be executed, carried out, or Police power, while incapable of an exactimplemented by the delegate [Abakada Guro definition, has been purposely veiled in generalPartylist v. Purisima, supra], such that there is terms to underscore its comprehensiveness tonothing left for the delegate to do but to enforce meet all exigencies and provide enough room Page 14 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWfor an efficient and flexible response as the Delegatedconditions warrant” [White Light Corporation v. 1. The PresidentCity of Manila, G.R. No. 122846 (2009)]. 2. Administrative bodies 3. Law-making bodies of LGUsScope and Limitations“The State in order to promote the general Limitations on Delegation of Police Powerwelfare, may interfere with personal liberty, 1. It must be made through an express grant bywith property, and with business and law;occupations. Persons may be subjected to all 2. It must be exercised within the territorialkinds of restraints and burdens, in order to jurisdiction of LGUs; andsecure the general comfort, health and 3. It must not be contrary to law.prosperity of the state and to this fundamentalaim of our Government, the rights of the TEST OF VALID EXERCISEindividual are subordinated” [Ortigas and Co., A. Means Purpose TestLimited 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 andAs police power derives its existence from the that the subject of the measure is within thevery 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 arescope or extent of the police power of the State; reasonably necessary for the accomplishmentwhat they do is to set forth the limitations of the purpose and not unduly oppressive uponthereof. 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. 84132-33clause [Ichong v. Hernandez, G.R. No. L-7995 (1990)].(1957)]. B. Reasonability TestPolice power has been characterized as the The limit to police power is reasonability. Themost essential, insistent, and the least limitable Court looks at the test of reasonability to decideof powers, extending as it does to all the great whether it encroaches on the right of anpublic needs [Ermita-Malate Hotel and Motel individual. So long as legitimate means canOperators Association, Inc. v. Mayor of Manila, reasonably lead to create that end, it issupra]. reasonable [Morfe v. Mutuc, G.R. No. L-20387 (1968)].Taxation and Eminent Domain asImplements on Police Power ApplicationTaxation may be used as an implement of The PWD mandatory discount on the purchasepolice 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 publicEminent domain may be used as an implement use is no longer confined to the traditionalto attain the police objective [Association of notion of use by the public, but heldSmall 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 discount1. Public Health privilege to which the PWDs are entitled is2. Public Safety actually a benefit enjoyed by the general public3. Public Morals to which these citizens belong. The means4. General Welfare [Abe v. Foster Wheeler employed in invoking the active participation ofCorporation, 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 employedWho may Exercise Police Power to provide a fair, just and quality health care toGenerally: Legislature PWDs are reasonably related to its Page 15 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWaccomplishment, and are not oppressive, within the territorial sovereignty, to publicconsidering that as a form of reimbursem*nt, 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 theestablishments as allowable tax deductions Two mandatory requirements shouldpursuant to Section 32 of R.A. No. 9442 as underlie the Government’s exercise of theimplemented 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; anddiscount reduces taxable income upon which (b) Just compensation should be paid to thethe tax liability of the establishments is property owner [Mactan-Cebu Internationalcomputed [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 anExercise of Police Power is subject to inherent power of the State that need not bejudicial 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 theproper exercise of its police powers is not final government’s exercise of this power [Republicor 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: LegislatureHowever, courts cannot delimit beforehand the Delegated (through charter):extent or scope of the police power, since they 1. LGUscannot foresee the needs and demands of 2. Other government entitiespublic interest and welfare. So it is thatConstitutions do not define the scope or extent The repository of eminent domain powers is theof the police power of the State; what they do legislature, i.e. exercised through theis to set forth the limitations thereof. The most enactment of laws. But power may beimportant of these are the due process clause delegated to LGUs and other governmentand the equal protection clause [Ichong v. entities (via charter); still, the delegation mustHernandez, supra]. be by law [Manapat v. CA, G.R. No. 110478 (2007)].Example of a Legitimate Exercise of PolicePower Requisites for the Valid Exercise of EminentR.A. No. 9257, the Expanded Senior Citizens DomainAct of 2003, is a legitimate exercise of police 1. Necessitypower. Administrative Order No. 177 issued by 2. Private Propertythe Department of Health, providing that the 3. Public Use20% discount privilege of senior citizens shall 4. Takingnot be limited to the purchase of unbranded 5. Just Compensationgeneric medicine but shall extend to both 6. Due Processprescription and non-prescription medicine,whether branded or generic, is valid [CarlosSuperdrug Corporation v. DSWC et al., G.R. 1. NecessityNo. 166494 (2007)]. There must be a necessity which must be of public character [Manapat v. CA, supra].2. Eminent DomainThe power of eminent domain is the inherent Difference as to the exercising officerright of the State to condemn private property [Manapat v. CA, supra].to public use upon payment of just If exercised by Nature of necessitycompensation. Congress Political questionThe right of eminent domain is the ultimate rightof the sovereign power to appropriate, not only A delegate, under Justiciable questionthe public but the private property of all citizens Page 16 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 PropertyGeneral Rule: All private property capable of 5. Just Compensationownership may be expropriated and it may Just compensation is defined as the full and fairinclude public utility and services [Republic v. equivalent of the property taken from its ownerPLDT, G.R. No. 18841 (1961)]. by the expropriator. The measure is not the taker's gain, but the owner's loss. The wordExceptions "just" is used to intensify the meaning of thea. Money word "compensation" and to convey therebyb. 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 [NationalIt is a personal right not reduced into Transmission Corporation v. Orovillepossession such as debts owed by another Development Corporation, G.R. No. 223366person. It is the right to recover a debt, (2017)].demand, or damages on a cause of action excontractu 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 [Section3. Public Use 4, Rule 67, ROC].Public use includes not only use directly Exception: At the time of taking, when takingavailable to the public but also those which precedes filing of the complaint.redound to their indirect benefit [Heirs ofArdona v. Reyes, G.R. Nos. L-60549, 60553- Inflation will not be considered in determining55 (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 ofpublic, a public advantage or public benefit Determination of Just Compensation is aaccrues 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 legislature4. Taking may make the initial determination but when aThere is taking of property when the following party claims a violation in the Bill of Rights, noare present [Republic v. Castellvi, G.R. No. L- statute, decree, or executive order can20620 (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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWTwo stages of Eminent Domain b. Progressive system of taxationa. 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 specifically3. Taxation authorizes it.It is the power by which the State raisesrevenue to defray the necessary expenses of Scope and Limitationthe Government. It is the enforced proportional General Limitationscontributions from persons and property, levied a. The power to tax exists for the generalby the State by virtue of its sovereignty, for the welfare. It should be exercised only for asupport of the government and for all public public purposeneeds. It is as broad as the purpose for which b. Might be justified as for public purposeit is given. even if the immediate beneficiaries are private individualsPurpose: c. Tax should not be confiscatory. If a taxa. To raise revenue measure is so unconscionable as tob. Tool for regulation amount to confiscation of property, thec. Protection/power to keep alive Court will invalidate it. But invalidating a tax measure must be exercised with utmostLifeblood theory and Necessity theory caution, otherwise, the State’s power toTaxes are the lifeblood of the government, for legislate for the public welfare might bewithout taxes, the government can neither exist seriously curtailed.nor endure. A principal attribute of sovereignty, d. Taxes should be uniform and equitablethe exercise of taxing power derives its source [Section 28(1), Article VI, 1987from the very existence of the state whose Constitution].social contract with its citizens obliges it topromote public interest and common good. The Judicial review for unconscionable andtheory behind the exercise of the power to tax unjust tax amounting to confiscation ofemanates from necessity; without taxes, propertygovernment cannot fulfill its mandate of The legislature has discretion to determine thepromoting the general welfare and well-being nature, object, extent, coverage, and situs ofof the people [NPC v. Cabanatuan, G.R. No. taxation. But where a tax measure becomes so149110 (2003)]. unconscionable and unjust as to amount to confiscation of property, courts will not hesitateTax for special purpose to strike it down; the power to tax cannotTreated as a special fund and paid out for such override constitutional prescriptions [Tan v. delpurpose only; when the purpose is fulfilled, the Rosario, G.R. No. 109289 (1994)].balance, if any, shall be transferred to thegeneral funds of the Government [Section Specific Limitations29(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 anda. Uniform and Equitable effect in every place where the subject of it isTaxes should be (a) uniform (persons or things foundbelonging to the same class shall be taxed atthe same rate) and (b) equitable (taxes should Exception: Rule does not prohibitbe apportioned among the people according to classification for purposes of taxation, providedtheir 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWb. Tax ExemptionsNo law granting any tax exemption shall bepassed without the concurrence of a majority ofall 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 taxexemption may be modified or withdrawn at willby the granting authority [Republic v. Caguioa,G.R. No. 168584 (2007)].
Exemptions may either be constitutional orstatutory:1. Constitutional exemptions [Section 28(3),Article VI, 1987 Constitution]2. If statutory, it has to have been passed bymajority of all the members of Congress[Section 28(4), Article VI, 1987 Constitution]
Page 19 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW
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 itsexercising 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 torelationship to the constitutional override constitutional constitutional andConstitution 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW
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 foreigni. 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 ratesii. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW3. Tax for special purpose
Special/Regulatory/Sumptuary Tax arelevied for special purposes, i.e., to achievesome social or economic ends irrespective ofwhether revenue is actually raised or not (e.g.,protective tariffs or customs duties on importedgoods to enable similar products manufacturedlocally to compete with such imports in thedomestic market).
Tariff duties intended mainly as a source ofrevenue are relatively low so as not todiscourage imports.
B. Power of Taxation as Distinguished from Police Power and Eminent DomainWhen the distinction of exercise of powersis relevant
The distinction is important when the oneexercising it is the LGU (mere delegatedauthority).
Since Congress has the power to exercise theState inherent powers of Police Power,
Eminent Domain and Taxation, the distinctionbetween police power and the power to taxwould not be of any moment when Congressitself exercises the power [NTC v. CA, G.R.No. 127937 (1999)].
Page 22 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW
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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWC. 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 directly1. 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 thetaxation: Expenditure — It is the essential charactera. Public Purpose of the direct object of the expenditure whichb. Inherently Legislative must determine its validity as justifying ac. International Comity tax and not the magnitude of the interestsd. Territoriality to be affected nor the degree to which thee. 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 Legislativegovernmental purpose - for the public welfare General Rule: Delegata potestas non potestor 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 theTest: Whether the statute is designed to power conferred upon the legislature to makepromote the public interest, as opposed to the laws cannot be delegated by that departmentfurtherance 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. ofPublic Works, G.R. No. L-10405 (1960)]. Stated in another way, taxation may exceptionally be delegated, subject to suchThe 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 anylegislature to impose the tax was to favor one constitutional provision or the inherentindustry over another [Tio v. Videogram, G.R. limitations of taxation;No. L-75697 (1987)]. b. The delegation is effected either by: i. The Constitution; orPublic use is no longer confined to the ii. By a validly enacted legislativetraditional notion of use by the public but held measures or statute; andsynonymous with public interest, public benefit, c. The delegated levy power, except when thepublic 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 ofLuzon 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 essentialcharacter 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 delegateTests 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW [Osmena v. Orbos, G.R. No. 99886 iii. Delegation to administrative (1993)]. agencies Limited to the administrative implementationLegislature has the power to determine the: that calls for some degree of discretionarya. Nature (kind); powers under sufficient standards expressedb. Object (purpose); by law or implied from the policy and purposesc. Extent (rate); of the Act.d. Coverage (subjects); ande. 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 forprinciple that the power to create municipal purposes of taxation pursuant to fixedcorporations for purposes of local self- rules;government carries with it, by necessary 2. The power to assess and collect theimplication, the power to confer the power to taxes; andtax on such local governments [1 Cooley 190]. 3. The power to perform any of theThis is logical for after all, municipal innumerable details of computation,corporations are merely instrumentalities of the appraisem*nt, and adjustment, andstate for the better administration of the the delegation of such details.government in respect to matters of localconcern [Pepsi-Cola Bottling Co. of the Phil. The exercise of the above powers is really notInc. 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 delegatedare now expressly given the power to create its include:own sources of revenue and to levy taxes, fees ● The determination of the subjects to beand charges, subject to such guidelines and taxed;limitations as the Congress may provide which ● The purpose of the tax, the amount ormust be consistent with the basic policy of local rate of the tax;autonomy [Section 5, Article X, 1987 ● The manner, means, and agencies ofConstitution]. 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 wharfa*ge 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW2. 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 be3. 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 entitiesd. Territoriality through which the government immediatelyRule: 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 orthe exercise or enjoyment of a right or privilege controlled corporations performing proprietaryderived from the laws of another state and (not governmental) functions, they aretherein exercise and enjoyed [51 Am.Jur. generally subject to tax unless exempted under8788]. Section 27(C) of the Tax Code or, in certain cases, if there is a tax exemption provisions inReasons: their charters or the law creating them in linea. 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 suche. 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 controlledGovernment: corporations (GOCCs) that perform proprietary
Page 26 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWfunctions hence, they are subject to taxation vi. Majority vote of Congress for grant of[Dimaampao]. tax exemption; vii. Prohibition on use of tax levied forException to the Exception: The following special purpose;GOCCs are not subject to income tax: viii. President’s veto power on1. Government Service Insurance System appropriation, revenue, tariff bills; (GSIS) ix. Non-impairment of jurisdiction of the2. Social Security System (SSS) Supreme Court;3. Home Development Mutual Fund (HDMF) x. Grant of power to the local government4. 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 andthe government taxing itself [Coll. v. Bisaya xiii. No appropriation or use of publicLand 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 ofa. 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 compensationb. 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 the2. Constitutional Limitations persons of a certain class, resident within aThe following are the constitutional limitations specified territory, without regard to theirof taxation: property or the occupations in which they maya. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 circ*mstances, 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWtaxpayer’s ability to pay. Example is that b. Its real properties are actually, directly andindividual 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 orprogressive tax, however, must not be other activity, the conduct of which is notconfused with a progressive system of taxation. related to the exercise or performance of religious, educational and charitable purposesWhile equal protection refers more to like or functions shall be subject to internal revenuetreatment of persons in like circ*mstances, taxes when the same is not actually, directly oruniformity and equity refer to the proper exclusively used for the intended purposesrelative treatment for tax purposes of persons [BIR Ruling 046-2000].in unlike circ*mstances.
Tax Neutrality on Islamic Banks Test of Use of the property, and notR.A. No. 11439 mandates a neutral tax Exemption the ownership [Abra Valleytreatment between Islamic banking College v. Aquino, G.R. No.transactions and equivalent conventional L-39086 (1988)]banking transactions within the provisions ofthe NIRC [R.R. No. 17-2020]. Nature of Actual, direct and exclusive Use use for religious, charitable3. 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 onunder the Flexible Tariff Clause [Section 28(2), Exemption facilities which are actual,Article VI, 1987 Constitution], which authorizes incidental to, or reasonablythe President to modify import duties [Section necessary for the1608, Customs Modernization and Tariff Act accomplishment of said(CMTA)]. purposes such as in the case of hospitals, a school for training nurses, a4. 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 theSection 28(3), Article VI, 1987 Constitution: hospital staff, anda. 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 Collegeb. 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 orc. 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 theTo be entitled to the exemption, the hospital, or receives subsidies from thepetitioner must prove that: government, so long as the money received isa. It is a charitable institution devoted or used altogether to the charitable Page 29 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWobject which it is intended to achieve; and no by law, including restrictions on dividends andmoney 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 educationalothers]. purposes shall be exempt from tax.
“Exclusive" – Possessed and enjoyed to theexclusion 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 taxesenjoying a privilege exclusively. imposed by either or both the national government or political subdivisions on allIf real property is used for one or more revenues, assets, property or donations, usedcommercial purposes, it is not exclusively used actually, directly and exclusively forfor 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 entitieswords "used exclusively" without doing and non-profit cemeteries, the exemption isviolence to the Constitution and the law. Solely limited to property tax.is synonymous with exclusively [Lung Center ofthe Philippines v. Quezon City, G.R. No. The exemption does not cover revenues144104 (2004)]. derived from, or assets used in, unrelated activities or enterpriseNote: Lung Center, supra, did not necessarily Revenues derived from assets used in theoverturn the case of Abra Valley. Lung Center operation of cafeterias, canteens, andjust provided a stricter interpretation. In Abra bookstores are also exempt if they are ownedValley, the Court held: The primary use of the and operated by the educational institution asschool lot and building is the basic and ancillary activities and the same are locatedcontrolling guide, norm and standard to within the school premises [RMC No. 76-2003].determine tax exemption, and not the mereincidental use thereof. Under the 1935 Similar tax exemptions may be extended toConstitution, the trial court correctly held that proprietary (for profit) educationalthe school building as well as the lot where it is institutions by law subject to suchbuilt, should be taxed, not because the second limitations as it may provide, includingfloor of the same is being used by the Director restrictions on dividends and provisions forand his family for residential purposes reinvestment. The restrictions are designed to(incidental to its educational purpose), but ensure that the tax-exemption benefits arebecause the first floor thereof is being used for used for educational purposes.commercial purposes. However, since only aportion is used for purposes of commerce, it is Lands, buildings, and improvementsonly fair that half of the assessed tax be actually, directly and exclusively used forreturned to the school involved. educational purposes are exempt from property tax [Section 28(3), Article VI, 19875. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 the6. 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 onBasis: The inherent power of the state to appropriation, revenue, tariff billsimpose taxes carries with it the power to grant SECTION 27(2), ARTICLE VI. The President shalltax 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 doesExemptions may be created by: not object.a. The Constitution, orb. Statutes, subject to constitutional limitations. 9. Non-impairment of jurisdiction of the Supreme CourtVote required for the grant of exemption: SECTION 2, ARTICLE VIII. The Congress shallAbsolute 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 notseparately) 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 Supremeof exemption: Relative majority is sufficient Court shall have the following powers: xxx(majority of the quorum).
Page 31 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW (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 purposesEven the legislative body cannot deprive the SECTION 29, ARTICLE VI. No public money orSC of its appellate jurisdiction over all cases property shall be appropriated, applied, paid, orcoming 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 anytoll is in question [San Miguel Corp v. Avelino, priest, preacher, minister, other religious teacher, orG.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 taxationScope of Judicial Review in taxation:Limited only to the interpretation and 1. Due processapplication of tax laws. Its power does notinclude inquiry into the policy of legislation. SECTION 1, ARTICLE III. No person shall beNeither can it legitimately question or refuse to deprived of life, liberty, or property without due process of law, nor shall any person be denied thesanction the provisions of any law consistent equal protection of the laws.with the Constitution [Coll. v. Bisaya LandTransportation, 105 Phil. 338 (1959)]. Substantive Due Process – An act is done10. 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. revenueLGUs have power to create its own sources of Procedural Due Process – An act is donerevenue and to levy taxes, fees and charges, after compliance with fair and reasonablesubject to such guidelines and limitations as methods or procedures prescribed by law.the Congress may provide which must beconsistent with the basic policy of local Requirements for Due Process in Taxationautonomy [Section 5, Article X, 1987 a. Public purposeConstitution]. b. Imposed within taxing authority’s territorial jurisdiction11. Flexible tariff clause c. Assessment or collection is not arbitrary orDelegation of tariff powers to the President oppressiveunder 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 noFlexible tariff clause: The authority given to support in the Constitution, as where it can bethe President, upon the recommendation of shown to amount to the confiscation of propertyNEDA, to adjust the tariff rates under Sec. 1608 [Sison v. Ancheta, G.R. No. L-59431(1984)].of the CMTA in the interest of nationaleconomy, general welfare and/or national Due process is usually violated where:security. ● The tax imposed is for private, as distinguished from, public purposes12. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW● 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 religiousclause, as applied to a particular taxpayer, profession and worship, without discrimination or preference, shall forever be allowed. (Free exercisealthough 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 ofDue process does not require that the property civil and political rights.subject to the tax or the amount to be raisedshould be determined by judicial inquiry, and a The free exercise clause is the basis of taxnotice and hearing as to the amount of the tax exemptions.and the manner in which it shall be apportionedare generally not necessary to due process of The imposition of license fees on thelaw [Pepsi-Cola Bottling Co. of the Philippines, distribution and sale of bibles and otherInc. v. Municipality of Tanauan, G.R. No. L- religious literature by a non-stock, non-profit31156 (1976)]. missionary organization not for purposes of profit amounts to a condition or permit for theInstances of violations of the due process exercise of their right, thus violating theclause: 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 prohibit2. 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 ofWhat the Constitution prohibits is class contractslegislation which discriminates against some SECTION 10, ARTICLE III. No law impairing theand favors others. As long as there are rational obligation of contracts shall be passed.or reasonable grounds for so doing, Congressmay, therefore, group the persons or propertiesto be taxed and it is sufficient “if all of the same The Contract Clause has never been thoughtclass are subject to the same rate and the tax of as a limitation on the exercise of the State'sis administered impartially upon them.” [1 power of taxation save only where a taxCooley 608]. exemption has been granted for a valid consideration [Tolentino v. Secretary ofThe equal protection clause is subject to Finance, supra].reasonable classification [See requisites forvalid classification, supra]. c. Territoriality Principle and Situs of Taxation3. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW● 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 situs1. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW
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
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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; orA toll is a sum of money for the use of Imprisonment (exceptsomething, generally applied to the poll tax).consideration which is paid for the use of aroad, bridge or the like, of a public nature [1 License or permit fee is a charge imposedCooley 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 taxationPrimary purpose test [Progressive does not include exemption from specialDevelopment Corp v. QC, supra]: assessment. But the power to tax carries with1. 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, may2. 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 DebtNote: Taxes may also be imposed forregulatory purposes. It is called regulatory tax. Based on laws Generally based on contract, express or4. 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 orSpecial assessment is an enforced when delinquent where there isproportional contribution from owners of lands defaultespecially or peculiarly benefitted by publicimprovement Imposed only by Can be imposed by public authority private individualA special assessment is not a personal liabilityof the person assessed, i.e., his liability is Not subject to set-off May be the subject of
Page 37 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 taxesA tax is not a debt in the ordinary sense of theword. 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 deemedinjurious b. Indirect Taxes Taxes which are demanded from one person inF. 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 matterTax of a fixed amount imposed on persons thereof, reach the consumers who ultimatelyresiding within a specified territory, whether pay for them not as taxes but as part of thecitizens or not, without regard to their property purchase price.or the occupation or business in which theymay be engaged (e.g. community (formerly Thus, the person who absorbs or bears theresidence) 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 specifiedproportion to its value or in accordance with goods, customs duties).some other reasonable method ofapportionment (e.g., real estate tax). The 3. As to tax ratesobligation to pay the tax is absolute andunavoidable and is not based upon the a. Specific Taxvoluntary 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWIt requires no assessment (valuation) other administered by the local executive through thethan the listing or classification of the objects to local treasurer (e.g., business taxes that maybe 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 TaxA tax of a fixed proportion of the value of the a. Progressiveproperty with respect to which the tax is The rate of tax increases as the tax base orassessed. It requires the intervention of bracket increases, e.g., income taxassessors or appraisers to estimate the valueof such property before the amount due from b. Regressiveeach 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 invalue.” (e.g., real estate tax, excise tax on the Philippines.automobiles, non-essential goods such asjewelry 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 otherA tax that has both the characteristics of basis to be taxed, e.g., real estate tax, donor’sspecific 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 andLevied for the general or ordinary purposes of diminishes gradually on sums below it. The taxthe Government, i.e., to raise revenue for rate in this case is arbitrary because thegovernmental needs (e.g., income tax, VAT, increase in tax rate is not proportionate to theand 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 theLevied for special purposes, i.e., to achieve regressive system of taxation.some social or economic ends irrespective ofwhether revenue is actually raised or not (e.g., In a society where the majority of the peopleprotective tariffs or customs duties on imported have low incomes, a regressive taxationgoods to enable similar products manufactured system exists when there are more indirectlocally 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 theTariff duties intended mainly as a source of indirect taxes are collected, the burden ofrevenue are relatively low so as not to indirect taxes rests more on them than on thediscourage imports. more affluent groups.
5. As to scope or authority imposing A progressive tax is, therefore, also differentthe tax from a progressive system of taxation.
a. National Regressivity is not a negative standard forTaxes imposed by the national government, courts to enforce. What Congress is requiredthrough Congress and administered by the by the Constitution to do is to "evolve aBureau of Internal Revenue (BIR) or the progressive system of taxation." TheseBureau of Customs (BOC) (e.g., national provisions are put in the Constitution as moralinternal revenue taxes, customs duties, and incentives to legislation, not as judiciallynational taxes imposed by laws). enforceable rights [Tolentino v. Secretary of Finance, G.R. No. 115455 (1994)]. b. Municipal or LocalTaxes imposed by local governments, throughtheir respective Sanggunians, and Page 39 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWG. Doctrines in Taxation b. Tax Laws General Rule: Tax laws are construed strictly against the government and liberally in favor of1. Lifeblood Theory the taxpayer [Manila Railroad Co. v. Coll. ofTaxes are the lifeblood of the government and Customs, G.R. No. L-30264 (1929)].so should be collected without unnecessaryhindrance. It is said that taxes are what we pay The imposition of a tax is not presumed, and afor civilized society. Without taxes, the statute will not be construed as imposing a taxgovernment would be paralyzed for lack of the unless it does so clearly, expressly, andmotive power to activate and operate it [CIR v. unambiguouslyAlgue, G.R. No. L-28896 (1988); See also CIRv. Pineda, G.R. No. L-22734 (1967)]. Exceptions: i. The rule of strict construction as againstThe underlying basis of taxation is the government is not applicable wheregovernmental necessity, for without taxation, a the language of the statute is plaingovernment 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 tax2. 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 theMandatory 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 taxdelinquency) or which are designed to insure Tax statutes are to receive a reasonableinequality of taxation or certainty as to nature construction or interpretation with a view toand 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 taxationmerely for information or direction of officers or unless within the terms or plain import of ato 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 andIt 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 payablewhich are intended for the security of the by “individuals” does not apply tocitizen, or to insure the equality of taxation, or “corporations.”certainty as to the nature and amount of each ● Tax statutes offering rewards areperson’s tax, are mandatory; but those liberally construed in favor of informersdesigned 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 tosystematic modes of proceedings are merely permit the taxpayer easily to evade thedirectory [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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW payment of surcharges imposed by the law d. When the exemption is granted under for failing to pay tax within the period special circ*mstances 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 theTax exemptions must be shown to exist clearly exemption by clear legislative intent, theand categorically, and supported by clear rule on strict construction does not applylegal 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 RegulationsIn the construction of tax statutes, exemptions General Rule: The Secretary of Finance, uponare not favored and are construed strictissimi recommendation of the CIR, shall promulgatejuris against the taxpayer [Republic Flour Mills all needful rules and regulations for thev. Comm. & CTA, G.R. No. L-25602 (1970)]. effective enforcement of the provisions of the1. 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 regulation2. 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 orExceptions: implement existing law must comply with thea. 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 generalb. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWand the rules and regulations implementing the This is also true with respect to decisions of thelaw, the law shall always prevail. Should Court of Tax Appeals but by the nature of itsRevenue Regulations deviate from the law they jurisdiction, the decisions of this court are stillseek 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 provisionthereof invalid only when the conflict with the e. Penal Provisions of Tax Lawslaw is clear and unequivocal. Penal provisions of tax laws must be strictly construed. It is not legitimate to stretch theAdministrative interpretations and opinions language of a rule, however beneficent itsThe power to interpret the provisions of the Tax intention, beyond the fair and ordinary meaningCode and other tax laws is under the exclusive of its language.and original jurisdiction of the Commissioner ofInternal Revenue subject to review by the A penal statute should be construed strictlySecretary of Finance [Section 4(1), NIRC]. against the State and in favor of the accused. The reason for this principle is theRevenue regulations are the formal tenderness of the law for the rights ofinterpretation of the provisions of the NIRC and individuals and the object is to establish aother laws by the Secretary of Finance upon certain rule by conformity to which mankindthe recommendation of the Commissioner of would be safe, and the discretion of the courtInternal Revenue [Section 244, NIRC]. limited [People v. Purisima, G.R. No. L-42050- 66 (1978)].General Rule: The Commissioner has the soleauthority to issue rulings but he also has the 3. Prospectivity of Tax Lawspower to delegate said authority to hissubordinates with the rank equivalent to a General Rule: Tax laws are prospective indivision chief or higher [Section 4(2), NIRC]. operation.
Exceptions: The Commissioner may not Reason: Nature and amount of the tax underdelegate the following powers: tax laws enacted after the transaction could nota. 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; andc. 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 beless, 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 becompromised 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 andeffect of law. As provided for in Article 8 of the The language of the statute must clearlyCivil Code, they “form part of the law of the demand or press that it shall have a retroactiveland.” effect [Lorenzo v. Posadas, supra].
Page 42 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWException to the exception: When such return was filed earlier thanretroactivity is harsh and oppressive such that the deadline); ORit is inequitable and violative of the Constitution b. The day when the return was actually filed, if filedCollection of interest in tax cases is not penal later than the last day ofin 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 tothe collection of interest on back taxes [Central 10 Prescription of assessment inAzucarera v. CTA, G.R. No. L-23236 (1967)]. YEARS cases of: a. False or fraudulent returnNon-retroactivity of rulings [Sec. 246, NIRC] with intent to evade tax; ORGeneral Rule: Rulings do not have retroactive b. Failure or omission to file aapplication if the revocation, modification, or return [Section 222, NIRC]reversal will be prejudicial to the taxpayer. Counted from the discovery ofExceptions: the fraud, falsity, or omission.a. Taxpayer’s deliberate misstatement or omission of facts 5 YEARS Prescription of collection of taxb. 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 prescriptivec. Taxpayer acted in bad faith periods; b. Assessed within theNote: The rule on non-retroactivity of rulings extended period agreedmay be applied only if the parties in the ruling upon by the Commissionerinvolve the taxpayer himself/itself. The and taxpayer (waiver of thetaxpayer cannot invoke the rulings granted in prescriptive period); andfavor of other taxpayers. c. Collected by distraint, levy, or by a proceeding in court4. Imprescriptibility of Taxes [Section 222, NIRC]Unless otherwise provided by law, taxes areimprescriptible [CIR v. Ayala SecuritiesCorporation G.R. No. L-29485 (1980)]. Note: The prescriptive period from final liquidation is three (3) years, except in casesThe 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; andperforce 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 theSummary 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW1. 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 property2. 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 being3. 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 ofThe 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 on2. 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 broader5. Double Taxation sense is not necessarily so [De Leon, citing 26Double taxation means taxing the same R.C.L 264-265]. Where double taxation (in itsproperty twice when it should be taxed only narrow sense) occurs, the taxpayer may seekonce; that is, “taxing the same person twice by relief under the uniformity rule or the equalthe 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 takesThe same property must be taxed twice when place when a person is resident of ait should be taxed once. The requisites are: contracting state and derives income from, or1. 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 or2. For the same purpose; capital. In order to eliminate double taxation, a3. 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 of5. During the same taxing period; and the contracting parties in order to help the6. 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 theThere is double taxation in the broad sense or same taxpayer in respect of the same subjectindirect duplicate taxation if any of the elements matter and for identical periods.for direct duplicate taxation is absent.
Page 44 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWThe apparent rationale for doing away with for the state cannot strip itself of the mostdouble 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 deprivedcapital, technology and persons between of this highest attribute of sovereignty [Manilacountries, conditions deemed vital in creating Electric Corporation v. Vera, G.R. No. L-29987robust 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, theModes of eliminating double taxation implication would be that the term would be ana. Allowing reciprocal exemption either by law exemption of something else, such as or by treaty; regulatory or reporting requirements [Inglesb. 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 ofThe grant of immunity to particular persons or reciprocity or to lessen the rigors ofcorporations or to persons or corporations of a international or multiple taxation.particular class from a tax which persons andcorporations 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 orimmunity or privilege; it is freedom from a justification for tax exemption, a law may validlyfinancial charge or burden to which others are authorize the condonation of taxes on equitablesubjected. It is strictly construed against the considerations.taxpayer. There is no tax exemption solely on the groundIt 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 speaksof a tax exemption, it should be understood as Nature of tax exemptionfreedom from the imposition and payment of a a. Mere personal privilege – Cannot beparticular tax [Secretary of Finance v. Lazatin, assigned or transferred without the consentG.R. No. 210588 (2016)]. of the legislature. The legislative consent to the transfer may be given either in theTaxation is the rule; exemption is the original act granting the exemption or in aexception subsequent law.He who claims exemption must be able to b. General Rule: Exemption is revocable byjustify his claim or right thereto, by a grant the government.expressed in terms “too plain to be mistaken Exception: If founded on a contract whichand too categorical to be misinterpreted.” If not is protected from impairment. But theexpressly mentioned in the law, it must at least contract must contain the essentialbe 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, may147629 (2010)]. be repealed or amended pursuant to the Constitution [Section 11, Article XII, 1987He who claims an exemption must be able to Constitution]. A legislative franchise is apoint 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 themere vague implication or inference. The right government of its right to collect taxes dueof taxation will not be held to have been to it, and, in this sense, is prejudicialsurrendered unless the intention to surrender is thereto. Hence, it exists only by virtue of anmanifested by words too plain to be mistaken, Page 45 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW express grant and must be strictly Rationale of Tax Exemption construed. Such exemption will benefit the body of thed. 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 highKinds of Tax Exemption prerogative of sovereignty, thea. 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 orderb. 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 Taxationc. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 the3. 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 placeFactors determining tax shifting when shifting has been effected from the1. 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 eventually3. 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 shifting4. 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 of5. 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 on7. 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 that8. The tax point case, consumers eventually pay the tax and so the incidence falls upon them.Taxes that can be shifted1. Value-added Tax Relationship between Impact, Shifting, and2. Percentage Tax Incidence of a Tax3. Excise Tax Impact Shifting Incidence
Meaning of Impact and Incidence of Initial Intermediate ResultTaxation phenomenon processImpact of taxation is the point where the tax isoriginally imposed or the one on whom the tax Page 47 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 whofinally bears the incidence of the tax Mere understatement of a tax is not itself proofb. Tax Avoidance (Tax Minimization) of fraud for the purpose of tax evasion. TheThe exploitation by the taxpayer of legally burden of proof is on the prosecution to provepermissible alternative tax rates or methods of beyond reasonable doubt that the accusedassessing taxable property or income in order willfully failed to supply correct and accurateto avoid or reduce tax liability. It is politely information [People v. Judy Ann Santos, CTAcalled “tax minimization” and is NOT Crim. Case No. 0-012 (2013)].punishable by law. The Willful Blindness Doctrine states that aExample: A person refrains from engaging in taxpayer can no longer raise the defense thatsome activity or enjoying some privilege in the errors on their tax returns are not theirorder to avoid the incidental taxation or to lower responsibility or that it is the fault of thehis 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 thatThe use by the taxpayer of illegal or fraudulent the taxpayer was aware of his obligation to filemeans 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 thepunishable by law. required returns [Ingles citing People v. Kintanar, C.T.A. E.B. No. 006 (2010)].Example: Deliberate failure to report a taxableincome or property; deliberate reduction of Tax Avoidance vs. Tax Evasionincome that has been received; overstatement Tax Tax Evasionof expenses. AvoidanceElements 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 Entirelyproved by direct evidence but may be inferred minimize escapefrom the circ*mstances 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWd. Transformation extinguished to the concurrent amountMethod of escape in taxation whereby the [Domingo v. Garlitos, G.R. No. L-18994manufacturer or producer upon whom the tax (1963)]has been imposed pays the tax and endeavorsto recoup himself by improving his process ofproduction thereby turning out his units ofproducts at a lower cost. The taxpayer escapesby a transformation of the tax into a gainthrough the medium of production.
8. Equitable RecoupmentThe doctrine of equitable recoupment allows ataxpayer whose claim for refund has beenbarred by prescription to offset such claimsagainst a current assessment.
The doctrine also allows the government tooffset taxes that have not been collected fromthe taxpayer against a current claim for refund,although the government is time-barred fromcollecting the previous taxes.
The doctrine finds NO application in thisjurisdiction.
9. Prohibition on Compensation and Set-offGeneral Rule: Taxes cannot be subject tocompensation [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 thegovernment have been recognized and anamount has already been appropriated for thatpurpose. Where both claims have alreadybecome: 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW
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 ora. Who may exercise legislative power in a Revolutionary Government SECTION 23(2), ARTICLE VI. In times of war orCongress other national emergency, the Congress may, byLegislative power shall be vested in the law, authorize the President, for a limited period andCongress, which consists of a Senate and a subject to such restrictions as it may prescribe, toHouse of Representatives [Section 1, Article exercise powers necessary and proper to carry outVI, 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 isplenary. Congress may legislate on any subjectmatter provided that constitutional limitations Congress may delegate legislative powers toare 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. ExceptionsExercise of Legislative Powers by Local a. PrincipleGovernment Delegata potestas non potest delegari – What has been delegated cannot be furtherRequirements of a valid ordinance (CUPPU- delegated.GC):a. It must not CONTRAVENE the Constitution b. Rationaleor any statute; Since the powers of the government have beenb. It must not he UNFAIR or oppressive; delegated to them by the people, who possessc. It must not be PARTIAL or discriminatory; original sovereignty, these powers cannot bed. It must not PROHIBIT but may regulate further delegated by the different governmenttrade; departments to some other branch ore. It must not be UNREASONABLE; instrumentality of the government.f. It must be GENERAL and CONSISTENT withpublic policy [Magtajas v. Pryce Properties, c. General Rule; ExceptionsG.R. No. 111097 (1994)]. General Rule: Only Congress (as a body) mayb. People’s Initiative on Statutes exercise legislative power.Legislative power is also vested in the peopleby the system of initiative and referendum Exceptions:[Section 1, Article VI, 1987 Constitution]. The 1. Delegated legislative power to localpower of initiative and referendum is the power governments;of the people directly to “propose and enact 2. Constitutionally-grafted exceptionslaws or approve or reject any act or law or part i. Emergency power delegated to thethereof passed by the Congress or local Executive during State of War orlegislative 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 delegateadministrative agencies – The principle of non- to do but to enforce the law [Pelaez v. Auditordelegability should not be confused with the General, G.R. No. L-23825 (1965)]; anddelegated rule-making authority ofimplementing agencies [Belgica v. Ochoa, Sufficient Standard Testsupra]. The standard defines legislative policy, marks its limits, maps out its boundaries and specifiesStrictly speaking, what is delegated is not the public agency to apply it. It indicates the“lawmaking” power, but rule-making power, circ*mstances under which the legislativelimited 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 ind. Who may exercise legislative power character (e.g. making of laws) cannot be delegated to an administrative body (in contrastGeneral Rule: Congress only. to the ascertainment of facts or the filing of details which can be delegated toe. Exceptions administrative agencies).
Exceptions (PLATE): B. Houses of Congress;1. Delegation to the People (by initiative and Compositions andreferendum) Qualifications2. Delegation to the Local governments3. Delegation to the Administrative bodies Senate House of4. Delegation of Tariff powers to the President Representatunder Constitution ives5. Delegation of Emergency powers to thePresident under Constitution Provision Sections 2- Sections 5-8, 14, Article VI Article VIThe President did not proclaim a nationalemergency, only a state of emergency in the Compositio 24 senators Not morethree places in ARMM. And she did not act n elected at than 250pursuant to any law enacted by Congress that large members,authorized her to exercise extraordinary unlesspowers. The calling out of the armed forces to otherwiseprevent or suppress lawless violence in such provided byplaces 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)]. RepresentatiUnder its plenary legislative powers, Congress vescan delegate to local legislative bodies the b. Party-Listpower to create local government units, subject Representatito reasonable standards and provided no vesconflict arises with any provision of theConstitution [Sema v. COMELEC, G.R. No. Qualificatio a. Natural- a. Natural-177597 (2008)]. Page 51 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW
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 leastassumption of office [Frivaldo v. COMELEC, 250,000 shall have at least 1G.R. No. 120295 (1996)]. representative. b. Each province, irrespective of the number of inhabitants, shall have at1. Senate least 1 representative.The Senate of each Congress acts separatelyand 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-gerrymanderingexpiration of one (1) Congress, all pending provision).matters and proceedings, such as unpassedbills and even legislative investigations, of the iv. Re-apportionment by Congress within 3Senate are considered terminated upon the years after the return of each census.expiration of that Congress and it is merelyoptional on the Senate of the succeeding Note: “Apportionment” refers to theCongress to take up such unfinished matters, determination of the number of representativesnot in the same status, but as if presented for which a State, county, or other subdivision maythe first time [Balag v. Senate of the send to a legislative body, whilePhilippines, 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWb. Party-list System 5. The nominees of sectoral parties or orgs, of either type, must (a) belong to their respectivei. Party-List Representatives sectors, or (b) have a track record of advocacyThey shall constitute 20% of the total number for their respective sectors. Majority of theof 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 orgsii. Sectoral Representatives shall not be disqualified if some of theirFor 3 consecutive terms from 2 February 1987, nominees are disqualified, provided they have1⁄2 of the party-list seats shall be allotted to at least 1 nominee who remains qualifiedsectoral representatives to be chosen by [Atong Paglaum, supra].appointment or election, as may be provided bylaw. Until a law is passed, they are appointed iv. Disqualifications and Qualificationsby the President from a list of nominees by the See R.A. No. 7941: An Act Providing For Therespective sectors [Section 7, Article XVIII, Election Of Party-List Representatives1987 Constitution]. Through The Party-List System, And Appropriating Funds ThereforNote: The party-list system is not synonymouswith sectoral representation [Atong Paglaum v. Disqualified PartiesCOMELEC, G.R. No. 203766 (2013), citing the 1. Religious sects1986 Constitutional Commission Records]. 2. Foreign organizations 3. Advocating violence or unlawful meansiii. Atong Paglaum Guidelines: 4. Receiving support from any foreign1. Three different parties or organizations may government, foreign political party, foundation,participate in the party-list system: organization, whether directly or through any ofa. National; its officers or members or indirectly throughb. 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 itsneed to (a) organize along sectoral lines, or (b) petition;represent any “marginalized or 7. Ceased to exist for at least one (1) year; orunderrepresented” sector; 8. Failing to participate in the last two (2) preceding elections or fails to obtain at least 23. 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 fora. they register under the party-list system; the constituency in which it has registered.b. they do not field candidates in legislativedistrict 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 Communities4. Sectoral parties or orgs may either be (a) 6. Elderly“marginalized or underrepresented” (e.g. labor, 7. Handicappedpeasant, fisherfolk); or (b) “lacking in well- 8. Womendefined political constituencies” (e.g. 9. Youthprofessionals, women, elderly, youth) 10. Veterans 11. Overseas Workers 12. Professionals Page 53 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWv. Four parameters of the party-list Step 6: Apply the 3-Seat Cap, if necessarysystem [see BANAT v. COMELEC, supra].1. 20% Allocation - 20% of the total number ofthe membership of the House of vii. ARARO v. COMELEC, G.R. No. 192803,Representatives is the maximum number of December 10, 2013seats available to party-list organizations. The Supreme Court further modified the2. 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 thea party- list organization one (1) seat. proportion garnered by the party-list group3. Additional Seats - The additional seats, that would now henceforth be:is, the remaining seats after allocation of theguaranteed seats, shall be distributed to the (Number of votes of party list)/(Total number ofparty-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 byvotes. This distribution will continue until all the party-listseats have been filled.4. 3-Seat Cap - The three-seat cap is viii. Formula for additional seatsconstitutional. (Total number of Party-list seats available) -Note: It is intended by the Legislature to (Number of seats allocated in the first round) xprevent any party from dominating the party-list (Proportion or Percentage of votes garneredsystem. There is no violation of the Constitution by the Party) = Additional seats awardedbecause the 1987 Constitution does not requireabsolute 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- PrivilegesRound AllocationStep 1: Compute total number of seats 1. Salariesallocated for party-list representatives SECTION 10, ARTICLE VI. The salaries of Senators and Members of the House of Representatives shallStep 2: Rank all party-list candidates from be determined by law. No increase in said compensation shall take effect until after thehighest to lowest based on the number of votes expiration of the full term of all the Members of thethey garnered. Senate and the House of Representatives approving such increase.Step 3: Compute for each party-list candidate’spercentage of votes garnered in relation to thetotal number of votes cast for party-list SECTION 17, ARTICLE XVIII. Until the Congresscandidates. provides otherwise, the President shall receive an annual salary of three hundred thousand pesos; the Vice-President, the President of the Senate, theStep 4: Round 1 – Allocate one (1) seat each Speaker of the House of Representatives, and thefor a party-list that garnered at least 2% of the Chief Justice of the Supreme Court, two hundredtotal number of votes. forty thousand pesos each; the Senators, the Members of the House of Representatives, theStep 5: Round 2 – Assign additional seats Associate Justices of the Supreme Court, and thefrom the balance (i.e. total number of party-list Chairmen of the Constitutional Commissions, two hundred four thousand pesos each; and theseats minus Round 1 allocations) by: Members of the Constitutional Commissions, onea. Allocating one (1) seat for every whole hundred eighty thousand pesos each.integer (e.g. if a party garners 2.73% of thevote, 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 theb. Allocating the remaining seats (i.e. total Senate and the House of Representatives” isseats minus Round 1 and Round 2a singular and means that the increase may onlyallocations) to those next in rank until all seats take effect upon the expiration of the termsare completely distributed. of both houses who passed the law increasing said salary. This means that even Page 54 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWif the House of Representatives term has 3. Speech and Debate Clausealready expired but the senate has not, the No Member shall be questioned nor be heldsalary increase cannot yet take effect even if liable in any other place for any speech orthe 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 themember of congress will attain upon House can still be questioned and held liable inretirement. Thus, a member of congress may Congress.not compute his retirement benefits based onthe salary increase which he was not able to To come under the guarantee, the speech orreach because his term has already expired debate must be one made "in Congress or inbefore said increase took effect [Ligot v. any committee thereof." Publication of anMathay, 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 ofRepresentatives shall, in all offenses What is covered under this provision?punishable by not more than six years Anything a member of Congress says in lineimprisonment, 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. UtterancesRegardless of the whereabouts of a Senator or c. Bills signedMember of the House, freedom from arrest d. Votes passedholds, so long as Congress is in session. While the immunity of a Member of CongressApplicability: Freedom from arrest applies is absolute and thus even the Supreme Courtonly to offenses punishable by not more than cannot discipline a lawyer-senator for remarkssix years imprisonment. made against the court, it does not shield said member from the authority of Congress toPreventive suspension is not a penalty. Order discipline its own members [Defensor-Santiagoof suspension under R.A. No. 3019 (Anti-Graft v. Pobre, A.C. No. 7399 (2009)].and Corrupt Practices Act) is distinct from thepower of Congress to discipline its own Inhibitions and Disqualificationsmembers and did not exclude members ofCongress from its operation [Defensor- 1. May not hold any office orSantiago 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 thethat he be allowed to attend legislative seat in Congress shall be automatic upon asessions. The denial was premised on the member’s assumption of such office deemedfollowing: (a) membership in Congress does incompatible. Thus, when a governor-elect rannot exempt an accused from statutes and rules for the Batasang Pambansa and won, he couldwhich 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 aprivileged class, without justification in reason; Note: The office of the Philippine National Redand (d) he was provided with an office in the Cross (PNRC) Chairman is not a governmentNew 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWGordon, G.R. No. 175352 (2009 & 2011)]; but and still unconstitutional [Puyat v. De Guzmannote that the structure of the PNRC is sui Jr., G.R. No. L-51122 (1982)].generis being neither strictly private nor publicin nature. Duty to Disclose2. May not be appointed to any office 1. Statements of Assets, Liabilities, andcreated or whose emoluments were Net Worth (SALN)increased during the term for which he SECTION 17, ARTICLE XI. A public officer orwas elected [Section 13, Article VI, 1987 employee shall, upon assumption of office and asConstitution] 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, theForbidden Office — One to which a member Vice-President, the Members of the Cabinet, thecannot be appointed even if he is willing to give Congress, the Supreme Court, the Constitutionalup his seat in Congress. The effect of his Commissions and other constitutional offices, andresignation 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 theforbidden 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 officewith, or franchise or special privilege 2. On or before April 15 after the closing of thegranted by the government during his calendar yearterm of office [Section 14, Article VI, 3. Upon expiration of term of office, resignation1987 Constitution] or separation from office
Who must declare:4. Shall not intervene in any matter 1. Presidentbefore any office of the government 2. Vice Presidentwhen it is for his pecuniary benefit or 3. Members of the Cabinetwhere he may be called upon to act on 4. Members of Congressaccount of his office [Section 14, Article 5. Members of the SCVI, 1987 Constitution] 6. Members of the Constitutional Commission and other Constitutional OfficesThe Pork Barrel System “runs afoul” of Section 7. Officers of the Armed Forces with general or14, Article VI, because in “allowing legislators flag rank [Section 17, Article XI, 1987to intervene in the various phases of project Constitution]implementation – a matter before another officeof government – [Pork Barrel] renders them 2. Financial and Business Interests;susceptible to taking undue advantage of their Political Conflicts of Interestown 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 ofbefore any court, electoral tribunal, their financial and business interests. xxxquasi judicial and administrative bodiesduring his term of office [Section 14, 3. Amounts Paid To/Expenses IncurredArticle VI, 1987 Constitution] by Each Member SECTION 20, ARTICLE VI. The records and booksThis prohibition is absolute. Thus, when an of accounts of the Congress shall be preserved andassemblyman acting as counsel for one group be open to the public in accordance with law, andin an internal dispute in a company was denied such books shall be audited by the Commission onleave to intervene, the court held that his action Audit which shall publish annually an itemized list ofof buying 10 stocks in order to be able to amounts paid to and expenses incurred for eachintervene in the company’s dispute as a Member.stockholder was an indirect violation of this rule
Page 56 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWD. Quorum and Voting Majorities1. 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 areoutside the country, thus outside of eachHouse’s coercive jurisdiction, are not included.
“Majority” shall take into consideration thenumber of members within the “jurisdiction” ofthe Congress (those it can order arrested forthe purpose of questioning). In Avelino v.Cuenco [G.R. No. L-2821 (1949)], one Senatorwas out of the Philippines which is not withinthe “jurisdiction” of the Senate, so that theworking majority was 23 Senators. There is adifference between a majority of "all membersof the House" and a majority of "the House", thelatter requiring less number than the first.Therefore, an absolute majority (12) of allmembers of the Senate less one (23)constitutes a constitutional majority of theSenate for the purpose of the quorum.
2. Voting Majorities
a. Doctrine of Shifting MajorityFor each House of Congress to pass a bill, onlythe votes of the majority of those present in thesession, there being a quorum, is required.
b. ExceptionsVotes where requirement is based on “allthe members of Congress”: Requirement isbased on the entire composition of a House orCongress (in its entirety), regardless of thenumber of Members present or absent.
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Action Votes Required House Voting Basis (All Members)
Senate shall elect its Majority Separately; All Section 16(1), Article VIPresident and the respective membersSpeaker of the House
Punish for disorderly 2/3 Separately; All Section 16(3), Article VIbehavior and may respective membersSUSPEND or EXPEL
Override Presidential 2/3 Separately (House Section 27(1), Article VIVeto 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 VIIof tie
Confirm appointment of Majority Separately Section 9, Article VIIVP
Congress affirming that 2/3 Congressthe President is unableto discharge powers andduties
Revoke or extend (a) Majority Jointly Section 18, Article VIIMartial Law or (b) thesuspension of theprivilege of the writ ofHabeas Corpus
Amnesty Grant Majority Silent Section 19(2), Article VII
Submit a question Majority (Silent) Section 3, Article XVIIcalling a Const.Convention to the Prevailing view; byelectorate default, houses vote separately (becauseCall for Constitutional 2/3 Congress is Section 3, Article XVIIConvention bicameral)
Propose amendments as 3/4 Section 1(1), Article XVIIConstitutional Assembly
Page 58 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWB. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWE. Discipline of Members One Subject One Title Rule 1. To prevent hodge-podge, "log-rolling", or theEach House may determine the rules of its smuggling in of "riders", that is, "any actproceedings, punish its Members for disorderly containing several subjects dealing withbehavior, and, with the concurrence of two- unrelated matters representing diversethirds of all its Members, suspend or expel a interests.Member. A penalty of suspension, when 2. To prevent surprise or fraud upon theimposed, shall not exceed sixty days [Section legislature16(3), Article VI, 1987 Constitution]. 3. To fairly apprise the people of the subjects of legislation that are being considered in orderEach house may punish its members for that they may have the opportunity of beingdisorderly behavior, and with the concurrence heard thereon, by petition or otherwise, if theyof 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 personOther 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 lawsThe suspension contemplated in theConstitution is different from the suspension Appropriations Laws – Created to regulateprescribed in the Anti-Graft and Corrupt spendingPractices Act (R.A. No. 3019). The former is SECTION 22, ARTICLE VII. The President shallpunitive 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 theNo. 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 comesto 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 thehave the power to compel congress to reinstate public debt, bills of local application, and private billsa 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 mayThe immunity for speech given to a member of not increase the appropriations recommended byCongress is not a bar to the power of Congress the President for the operation of the Government asto discipline its members [Osmeña v. specified in the budget. The form, content, and manner of preparation of the budget shall bePendatun, 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 time2. 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 billbecome a law: for consideration on Second Reading.a. When it is approved by the President; ● On Second Reading, the Secretaryb. When the vote of the President is overridden General reads the number, title and text ofby a two-thirds vote of all the members of both the bill and the following takes place:houses; ○ Period of Sponsorship and Debatec. Upon failure of the President to veto the bill ○ Period of Amendmentsand to return it with his objections, to the House ○ Voting which may be done by: Page 61 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW ■ 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 bill5. 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 the6. 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 shall7. 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 law8. 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 the9. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 and3. The President’s Veto Power the form they should take.Section 27, Article VI defines the only way forthe 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 [Sectionshould return the measure to the House of 26(1), Article VI, 1987 Constitution].origin, indicating his objections thereto in whatis commonly known as a veto message so that 2. The title is not required to be an index of thethe same may be studied by the members for contents of the bill. It is sufficient compliance ifpossible overriding of his veto. the title expresses: (a) the general subject; and (b) all the provisions of the statute are germaneGeneral Rule: The President must approve a to that subject [Tio v. Videogram Regulatorybill 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 becomeappropriation, revenue and tariff bills, any law unless it has passed three (3) readings onparticular item or items of which may be separate days [Section 26(2), Article VI, 1987disapproved without affecting the item or items Constitution].to which he does not object. 4. Printed copies in its final form must haveTo override the President’s veto, at least ⅔ of been distributed.ALL members of each house must agree topass the bill. In such case, the veto is Exception: When the President certifies to theoverridden and the bill becomes law without necessity of its immediate enactment to meet aneed of presidential approval. public calamity or emergency.4. Doctrine of Inappropriate Provision Presidential certification dispenses with (1) theA provision that is constitutionally inappropriate printing requirement; and (2) the requirementfor 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 Circ*mscribe 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 Alignmenteffectivity, the publication requirement is Exec. Ord. No. 292 (1987), Book VI,mandatory, in order that a law may become Chapter 1effective. The object of the publicationrequirement 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 localto regulate their actions and conduct—without application, and private bills shall originatepublication, there would be no basis for the exclusively in the House of Representatives but theapplication of the maxim, “ignorantia legis non Senate may propose or concur with amendments.excusat.” The publication requirement is arequirement of due process [Tanada v. Tuvera, (2) The Congress may not increase theG.R. No. L-63915 (1985)]. appropriations recommended by the President for the operation of the Government as specified in the
Page 63 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWbudget. The form, content and manner of 2. Legislative Inquiries vs. Questionpreparation 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 relatesspecifically to some particular appropriation to whichit relates. Legislative Question(4) The procedures in approving appropriations for Inquiries Hourthe Congress shall strictly follow the procedure forapproving 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 anypurpose for which it is intended, and shall be legislation mattersupported by funds actually available as certified by pertaining tothe National Treasurer or to be raised by acorresponding revenue proposal therein. the subject’s department(6) No law shall be passed authorizing any transferof appropriations. However, the President, the Persons Any person Heads ofPresident of the Senate, the Speaker of the House Subjected upon departmentsof Representatives, the Chief Justice of the subpoena onlySupreme Court and the heads of ConstitutionalCommissions may, by law, be authorized toaugment any item in the general appropriations laws Appearance Appearance Appearancefor their respective offices from savings in other of Executive of executive of executiveitems of their respective appropriations. Officials officials officials generally 1. Via(7) Discretionary funds appropriated for particular mandatory requestofficial shall be disbursed only for public purposes to 2. Uponbe supported by appropriate vouchers and subjectto such guidelines as may be prescribed by law. executive official’s(8) If, by the end of any fiscal year, the Congress volition withshall have failed to pass the general appropriations the consentbill for the ensuing fiscal year, the general of theappropriations law for the preceding fiscal year shall Presidentbe deemed reenacted and shall remain in force andeffect until the general appropriations bill is passedby the Congress. The mere filing of a criminal or an(9) Fiscal autonomy shall be enjoyed by the administrative complaint before a court orJudiciary, Constitutional Commissions, Office of the quasi-judicial body should not automaticallyOmbudsman, Local Government and Commission bar the conduct of a legislative inquiryon 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 either1. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWruling and upheld the President’s constitutional that it is so. If the President and Congressauthority over the military. It held that cannot agree on whether the matter isobedience and deference to the military chain privileged or not, then the Court must come inof command and the President as commander- to determine the validity of the claim of privilegein-chief are the cornerstones of a professional [Senate of the Philippines v. Ermita, supra].military in the firm cusp of civilian control. In thesame case, the Supreme Court also ruled that 4. Elements of Presidentialany chamber of Congress which seeks the Communications Privilegeappearance 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 claimremedies under the law to compel such of executive privilege was properly invoked byattendance. Final judicial orders have the force Secretary Neri, specifically under what is calledof the law of the land which the President has “presidential communication privilege.” Thethe duty to faithfully execute. If the courts so elements of presidential communicationsrule, the duty falls on the shoulder of the privilege are:President, as Commander in Chief, to a. The protected communication mustauthorize the appearance of military officials relate to a “quintessential and non-before Congress. delegable presidential power.” b. The communication must be authored3. Additional Limitation: Executive or “solicited and received” by a closePrivilege advisor of the President or by theExecutive privilege is the right of the President President himself. The judicial test isand high level officials authorized by her to that an advisor must be in “operationalwithhold information from Congress, from the proximity” with the President.courts, and ultimately from the public. Among c. The presidential communicationsthe types of information which have been privilege remains a qualified privilegejudicially recognized as privileged are state that may be overcome by a showing ofsecrets regarding military, diplomatic and other adequate need, such that informationnational security matters. Certain information in sought “likely contains importantthe possession of the executive may validly be evidence” and by the unavailability ofclaimed as privileged even against Congress, the information elsewhere by ansuch as Presidential conversations, appropriate investigating authority.correspondences, or discussions duringclosed-door Cabinet meetings [Chavez v. PEA, 5. Contempt PowerG.R. No. 133250 (2003)]. As long as there is legitimate inquiry, then the inherent power of contempt by the Senate mayWho may invoke: Only the President can be properly exercised. Conversely, once theinvoke it. She may also authorize the Executive legislative inquiry concludes, the exercise ofSecretary to invoke the privilege on her behalf, the inherent power of contempt ceases andin which case, the Executive Secretary must there is no more genuine necessity to penalizestate that the Act is “By order of the President,” the detained witness [Balag v. Senate of thewhich 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 OversightThe claim of privilege must be specific, e.g., Broadly defined, the power of oversightwhether the information sought to be withheld embraces all activities undertaken byinvolves military or diplomatic secrets, closed- Congress to enhance its understanding of anddoor Cabinet meetings, etc. A claim of influence over the implementation of legislationprivilege, being a claim of exemption from an it has enacted. Clearly, oversight concernsobligation to disclose information must be post-enactment measures undertaken byclearly asserted. Congress has the right to Congress: (a) to monitor bureaucraticknow why the executive considers the compliance with program objectives, (b) torequested information privileged. It does not determine whether agencies are properlysuffice to merely declare that the President, or administered, (c) to eliminate executive wastean authorized head of office, has determined Page 65 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWand dishonesty, (d) to prevent executive v. Purisima, supra; See also discussion underusurpation of legislative authority, and (e) to Checks and Balances, supra].assess executive conformity with thecongressional perception of public interest. I. Power of impeachment7. Categories of Congressional The House of Representatives shall have theOversight Functions exclusive power to initiate all cases ofThe acts done by Congress purportedly in the impeachment [Section 3(1), Article XI, 1987exercise 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, 1987a. 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 endorsem*nt 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 bec. Legislative supervision (legislative initiated against the same official more thanveto) 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 standardsNote: Legislative supervision is NOT allowed it asks of justices and judges when it comesunder the Constitution [Abakada Guro Partylist to inhibition from hearing cases. Page 66 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW● 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 TypesThe 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 TribunalBy 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 theover justiciable issues arising in impeachment question of the qualifications of the President,proceedings [Francisco v. House of the Vice-President, Senators and the MembersRepresentatives, supra]. But the question of of the House of Representatives was madewhether 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) Composition4. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW (4) Nature (5) PowersJurisdiction: Sole judge of all contests relating The power granted to HRET by the Constitutionto the election, returns, and qualifications of is intended to be as complete and unimpairedtheir 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,” theIn the absence of an election contest, and Constitution is emphatic that the jurisdiction ofbefore proclamation, jurisdiction remains with the HRET in the adjudication of electionCOMELEC [Lazatin v. HRET, supra]. But the contests involving its members is exclusive andproclamation of a congressional candidate exhaustive. Its exercise of power is intended tofollowing the election divests the COMELEC of be its own — full, complete and unimpairedjurisdiction over the proclaimed representative [Duenas, Jr. v. HRET, G.R. No. 185401in favor of the HRET [Tañada v. COMELEC, (2009)].G.R. No. 207199 (2013)]. b. Commission on AppointmentsBut see Ongsiako-Reyes v. COMELEC [G.R. SECTION 18, ARTICLE VI. There shall be aNo. 207264 (2013)] where the Court held that Commission on Appointments consisting of thean 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 Housecandidate is already considered a member of of Representatives, elected by each House on thethe House. basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. TheTo be considered a member, in turn, there must chairman of the Commission shall not vote, exceptbe a concurrence of the following: (1) a valid in case of a tie. The Commission shall act on allproclamation; (2) a proper oath (a) before the appointments submitted to it within thirty sessionSpeaker and (b) in open session; and (3) days of the Congress from their submission. Theassumption of office. Commission shall rule by a majority vote of all the Members.The Court in Ongsiako-Reyes clarified thedoctrine that once a proclamation has been (1) Compositionmade, COMELEC’s jurisdiction is already lost a. Senate President as ex-officio chairmanand 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 Senatorsnot only been proclaimed and sworn in, but has c. 12 Members of the HORalso assumed office. (2) Rule on ProportionalElection Contest RepresentationOne where a defeated candidate challenges The 12 Senators and 12 Representatives arethe qualification and claims for himself the seat elected on the basis of proportionalof a proclaimed winner. representation from the political parties and party-list organizations.Independence of the Electoral TribunalsSince the ET’s are independent constitutional The HOR has authority to change itsbodies, independent even of the respective representation in the Commission onHouse, neither Congress nor the Courts may Appointments to reflect at any time theinterfere with procedural matters relating to the changes that may transpire in the politicalfunctions of the ET’s [Macalintal v. Presidential alignments of its membership. It is understoodElectoral 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWBy requiring proportional representation in the Congress cannot require that the appointmentCommission on Appointments, Sec. 18 in effect of a person to an office created by law shall beworks 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 isentitled to under such rule [Guingona, Jr. v. Appointments extended by the President to theGonzales, 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 onconstituted within 30 days after the Senate and Appointments; orthe House of Representatives shall have been b. Until the next adjournment of Congress.organized with the election of the President andthe Speaker [Section 19, Article VI, 1987 K. Initiative and referendumConstitution].
It is NOT mandatory to elect 12 Senators to the 1. InitiativeCommission before it can discharge itsfunctions. What the Constitution requires is at a. Local Initiative; Voter Requirementsleast a majority of the membership [Guingona Region Not less than xv. Gonzales, G.R. No. 106971 (1992)]. registered votersIt shall act on all appointments within 30 Autonomous 2000session days from their submission to regionsCongress and shall rule by a majority vote of allits members. Provinces 1000
The power to approve or disapproveappointments is conferred on the CA as a body Municipalities 100and not on the individual members [Pacete v.Secretary of the Commission on Appointments, Barangays 50G.R. No. L-25895 (1971)].
(4) JurisdictionThe Commission shall confirm the b. Where to Fileappointments by the President with respect to Regional Assembly or local legislative body, asthe 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWa. 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 referendumplenary? 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW
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 the1. Qualifications President or Vice-President, and maya. 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 Officed. 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 thee. 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 anyb. 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 electedc. 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 rund. Person having the highest number of votes for President if he has served shall be proclaimed elected for more than four yearse. 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 CanvassingCongress may validly delegate the initial B. Privileges, Inhibitions, anddetermination of the authenticity and due Disqualificationsexecution of the certificates of canvass to aJoint Congressional Committee, composed ofmembers of both houses [Lopez v. Senate, 1. Official residence The president shall have an official residenceG.R. No. 163556 (2004)]. [Section 6, Article VII, 1987 Constitution].Even after Congress has adjourned its regularsession, it may continue to perform this 2. Salaryconstitutional duty of canvassing the This shall be determined by law. It shall not bepresidential and vice-presidential election decreased during tenure. No increase shallresults without need of any call for a special take effect until after the expiration of the termsession by the President. Only when the board of the incumbent during which such increaseof canvassers has completed its functions is it was approved [Section 6, Article VII, 1987 Constitution]. Page 71 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW3. Presidential Immunity 5. The Vice-PresidentThe President as such cannot be sued, Qualifications, election and term of office andenjoying as he does immunity from suit. But the removal are the same as the President, exceptvalidity of his acts can be tested by an action that no Vice-President shall serve for moreagainst other executive officials [Carillo v. than 2 successive terms.Marcos, G.R. No. L-21015 (1981)]. The Vice-President may be appointed as aa. May be invoked only by the President member of the Cabinet; such requires noImmunity from suit pertains to the President by confirmation by the Commission ofvirtue of the office and may be invoked only by Appointments.the holder of the office; not by any other personin the President's behalf. The President may 6. Prohibitions on the Executivewaive the protection afforded by the privilege Departmentand submit to the court's jurisdiction [Soliven v. The following prohibitions apply to:Makasiar, G.R. No. 82585 (1988); Beltran v. a. PresidentMakasiar, G.R. No. 82827(1988)]. b. Vice-President, c. The members of the Cabinet, and theirBut presidential decisions may be questioned deputies or assistantsbefore the courts where there is grave abuse ofdiscretion or that the President acted without or 7. Prohibited Actsin excess of jurisdiction [Gloria v. CA, G.R. No. a. Shall not receive any other emoluments119903 (2000)]. from the government or any other source [For President and Vice-President, Sectionb. Limitations 6, Article VII, 1987 Constitution].Immunity coextensive with tenure and covers b. Unless otherwise provided in theonly official duties. After tenure, the Chief Constitution, shall not hold any other officeExecutive 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 notperformed 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 officioThis presidential privilege of immunity cannot capacity, as provided by law or as requiredbe invoked by a non-sitting president even for by the primary functions of the said official’sacts 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 presidentact is one not arising from official conduct [See when one has not yet been chosen orEstrada v. Desierto, supra]. qualified [Section 7(2) & (3), Article VII, 1987 Constitution].4. Presidential Privilege iv. The Secretary of Justice sitting as exIt is "the right of the President and high-level officio member of the Judicial and Barexecutive branch officers to withhold Council [Section 8(1), Article VIII, 1987information 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; orv. Senate, infra, and Saez v. Macapagal- 3. Be financially interested in any contractArroyo, 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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. Presidentd. 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 thee. 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 thea. Prohibitions Cabinet. Such appointment requires noOEPBCF - "Only Eccentric People Believe confirmation [Section 3, Article VII,co*ckatoos Find Soulmates" 1987 Constitution].
a. Hold any other office or employment 3. Cabinetb. Practice any other profession The Constitution allows a Cabinet member toc. Participate in any business hold another office provided:d. Be financially interested in any contract with, i. It is in an ex-officio capacity andor in any franchise, or special privilege granted without additional compensation;by the Government or any of its subdivision, ii. Such is necessitated by theagency, or instrumentality primary functions of his position (e.g. Secretary of Trade andb. President’s spouse and relatives Industry as Chairman of NDC;President's spouse and relatives by Secretary of Agrarian Reform asconsanguinity or affinity within the fourth civil Chairman of the Land Bank); anddegree cannot be appointed during his tenure iii. Such is allowed by law [Civilas: (COSUCH) Liberties Union v. Executivea. Members of the Constitutional Commissions Secretary, supra].b. Members of the Office of the Ombudsmanc. Secretaries, Undersecretaries, Chairmen or Note: Section 7, Article IX-B is the general ruleHeads of bureaus or offices (including GOCCs for appointed officials. It is not an exception toand subsidiaries) Section 13, Article VII, which is a specific rule for members of the Cabinet, their deputies andThe stricter prohibition applied to the President assistants inter alia [See Civil Liberties Unionand his official family under Article VII, Section v. Executive Secretary, supra].13, as compared to the prohibition applicableto appointive officials in general under Article De facto officer doctrine: In cases whereIX-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 theby itself and to impose upon said class stricter office and has discharged the duties pertainingprohibitions [Civil Liberties Union v. Executive thereto, is legally entitled to the emoluments ofSecretary, 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWor 3rd parties are concerned [Espiritu v. del b. Suspension of the privilege ofRosario, 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 theGeneral Executive and Administrative ConstitutionPowers 6. Power of Legislation a. Veto Powera. Executive Power b. Power to Declare Emergency:This refers to the President’s power to enforce, The President only has the powerimplement, 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 sharedinvestigations to aid him in ensuring the faithful with legislative (e.g. appointmentsexecution of laws is inherent in the President’s requiring confirmation, rule-powers as the Chief Executive. The purpose of making); legislation during times ofallowing ad hoc investigating bodies to exist is emergencyto allow an inquiry into matters which the 7. Diplomatic Powers: Includes thePresident is entitled to know so that he can be power to enter into treatiesproperly advised and guided in the 8. Residual Power: To protect theperformance of his duties relative to the general welfare of people; founded onexecution and enforcement of the laws of the duty of President as steward of theland [Biraogo v. Philippine Truth Commission, people; includes powers unrelated toG.R. Nos. 192935-36 (2010)]. execution of any provision of law [See Marcos v. Manglapus, G.R. No. 88211b. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWmay its exercise be limited, much less President, G.R. No. 203372withdrawn, 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 departmentsSECTION 16, ARTICLE VII. The President shallnominate and, with the consent of the Commission ● Ambassadors, other publicon Appointments, appoint the heads of the executive ministers and consulsdepartments, ambassadors, other public ministers ● Officers of the armedand consuls, or officers of the armed forces from the forces from the rank ofrank of colonel or naval captain, and other officers colonel or naval captainwhose appointments are vested in him in this ● Other officers whoseConstitution. He shall also appoint all other officersof the Government whose appointments are not appointments are vested inotherwise provided for by law, and those whom he him by the Constitution:may be authorized by law to appoint. The Congress ● Regular Members of themay, by law, vest the appointment of other officers JBC (ex-officio memberslower in rank in the President alone, in the courts, or do not need thein 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWand 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. Clusteringand independent of the armed forces and that In Aguinaldo v. Aquino [G.R. No. 224302the ranks in the military are not similar to those (2017)], the Court ruled that clusteringin the PNP. Thus, directors and chief impinged upon the President’s appointmentsuperintendents of the PNO do not fall under power in appointing the Associate Justices inthe 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 fromappointment of other officers lower in rank in one cluster, he was proscribed fromthe 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 Appointeefrom 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 issuedwithin 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWAppointment is essentially a discretionary appointments to the Constitutionalpower, the only condition being that the Commissions (e.g. COMELEC) areappointee, if issued a permanent appointment, permanent as these take effectshould possess the minimum qualification immediately and can no longer berequirements, including the Civil Service withdrawn by the President once theeligibility prescribed by law for the position. appointee has qualified into office. TheDiscretion also includes the determination of fact that it is subject to the confirmationthe 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 AppointmentTypes 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 anConfirmation: 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 AppointmentsRegular 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 whenNote: The mere filing of a motion for is a vacancy Congress is not inreconsideration of the confirmation of an sessionappointment cannot have the effect of recallingor setting aside said appointment The Does not required Requires CAConstitution is clear — there must be a CA confirmation confirmationrejection by the Commission on Appointmentsor non-action on its part for the confirmation to 2. Temporary Designationsbe recalled. The President may designate an officer already in the gov’t service or any other competentc. Midnight and Ad Interim person to perform the functions of any office inAppointments 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWCongress cannot impose on the President the new president being elected], doublyobligation to appoint an Undersecretary as [the careful and prudent in making thePresident’s] Acting Secretary. The President selection, so as not to defeat theshall have the freedom to choose who shall be policies of the incoming administration.his temporary alter ego [Pimentel v. Ermita, Hence, the issuance of 350G.R. No. 164978 (2005)]. appointments in one night and planned induction of almost all of them a fewLimitations 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWServe at the pleasure of the President: Note: The President's power of control onlyCabinet members and such officers whose extends to administrative functions. If it iscontinuity in office depends upon the pleasure performing quasi-judicial functions, the Officeof the president may be replaced at any time, of the President has no jurisdiction [See Cruzbut 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 PoliticalD. 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 executiveControl is essentially the power to (1) alter or departments are assistants and agents of themodify 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 courseduties; 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 ChiefPhilippine 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 circ*mstances. 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 RuleSupervision is the overseeing or the power of The multifarious executive and administrativethe officer to see that subordinate officers functions of the Chief Executive are performedperform their duties, and if the latter fail or by and through the executive departments.neglect to fulfill them, then the former may takesuch action or steps as prescribed by law to Exceptionsmake them perform these duties. This does not a. Cases where the Chief Executive isinclude the power to overrule their acts, if these required by the Constitution or by lawacts are within their discretion. In relation to to act in person; orlocal government units (LGUs), supervision b. The exigencies of the situation demandincludes the authority to ensure that LGUs are that he acts personally.operating and acting in accordance with lawand not ultra vires. The President may, by executive or administrative order, direct the reorganization of government entities under the Executive Page 79 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWDepartment. This is also sanctioned under the The President shall exercise generalConstitution, as well as the Admin Code. This supervision over autonomous regions torecognizes the recurring need of every ensure that laws are faithfully executedPresident to reorganize his or her office "to [Section 16, Article X, 1987 Constitution].achieve simplicity, economy and efficiency," inthe manner the Chief Executive deems fit to The President may suspend or remove localcarry 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 Government167324 (2007)]. Code. The Constitution also places local governments under the general supervision ofPower to Abolish Offices the President, and also allows Congress toGenerally, the power to abolish a public office include in the local government code provisionsis legislative. However, as far as bureaus, for removal of local officials [Section 3, Articleoffices 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 Powers142801-802 (2001)]. 1. Emergency PowersIn establishing an executive department, Delegated by the Congress. It covers suchbureau, or office, the legislature necessarily power necessary to carry out a declaredordains an executive agency's position in the national policy of Congress.scheme of administrative structure. Suchdetermination is primary, but subject to the 2. Nature of GrantPresident's continuing authority to reorganize Generally, Congress is the repository ofthe administrative structure [Anak Mindanao v. emergency powers. This is evident in the tenorExecutive 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 notof 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; andSecretary, G.R. No. 196425 (2012)]. d. The emergency powers must be exercised to carry out a national policy3. Local Government Units declared by Congress.The President shall exercise general 4. Concept of Emergencysupervision over local governments [Section 4, Emergency, as a generic term, connotes theArticle X, 1987 Constitution]. existence of conditions suddenly intensifying the degree of existing danger to life or Page 80 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWwellbeing beyond that which is accepted asnormal. 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 orEmergencies, as perceived by legislature or suspension, convene in accordance with its rulesexecutive 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 appropriateclassifiable under three principal heads: (a) proceeding filed by any citizen, the sufficiency of theeconomic, (b) natural disaster, and (c) national factual basis of the proclamation of martial law or thesecurity. Emergency as contemplated in the suspension of the privilege of the writ or the1987 Constitution, is of the same breadth. It extension thereof, and must promulgate its decisionmay 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 thesimilar catastrophe of nationwide proportions operation of the Constitution, nor supplant theor effect. functioning of the civil courts or legislative assemblies, nor authorize the conferment ofIn David v. Macapagal-Arroyo [G.R. No. jurisdiction on military courts and agencies over171396 (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 aState of National Emergency) was woven out The suspension of the privilege of the writ shall applyof the “calling out” and “take care” powers of only to persons judicially charged for rebellion orthe President joined with the “temporary offenses inherent in or directly connected with thetakeover” provision under Section 17, Article invasion.XII. PP1017 purports to grant the President, During the suspension of the privilege of the writ, anywithout delegation from Congress, to take over person thus arrested or detained shall be judiciallyor direct operation of any privately-owned charged within three days, otherwise he shall bepublic utility or business affected with public released.interest.
The President may declare the existence of a Commander-in-Chief Powersstate of national emergency without The President is the commander-in-chief of allCongressional enactment however the armed forces of the Philippines. The ability ofexercise of emergency powers requires a the President to require a military official todelegation from Congress which is the secure prior consent before appearing beforerepository of emergency powers. Congress pertains to a wholly different and independent species of presidential authority — the commander-in-chief powers of theF. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWTwo conditions for exercise of the latter two court commanding a detaining officer to informpowers:, 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 theexercise of the calling out power. The only writ applies only to persons “judiciallycriterion is that ‘whenever it becomes charged” (should be read as one whonecessary,’ the President may call the armed is suspected of complicity in) forforces ‘to prevent or suppress lawless violence, rebellion or offenses inherent in orinvasion or rebellion.’ [Sanlakas v. Executive directly connected with invasionSecretary, supra] [Section 18, par. 5, Article VII, 1987 Constitution].Outside explicit constitutional limitations, the i. Such persons suspected of thecommander-in-chief clause vests in the above can be arrested andPresident, as commander-in-chief, absolute detained without warrant ofauthority over the persons and actions of the arrest.members of the armed forces. Such authority ii. The suspension of the privilegeincludes the ability of the President to restrict does not make the arrestthe travel, movement and speech of military without warrant legal. But theofficers, activities which may otherwise be military is, in effect, enabled tosanctioned 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 remedy1. Calling Out Powers available against such unlawfulThis is merely a police measure meant to quell arrest (arbitrary detention).disorder. As such, the Constitution does not iii. The arrest without warrant isregulate its exercise radically. justified by the emergency situation and the difficulty ina. State of Rebellion applying for a warrantSince the Constitution did not define the term considering the time and the"rebellion," it must be understood to have the number of persons to besame meaning as the crime of "rebellion" in the arrested.Revised Penal Code (RPC). iv. The crime for which he isIn determining the existence of rebellion, the arrested must be one related toPresident only needs to convince himself that rebellion or invasion. As tothere is probable cause or evidence showing others, the suspension of thethat more likely than not a rebellion was privilege does not apply.committed or is being committed. To require b. During the suspension of the privilegehim to satisfy a higher standard of proof would of the writ, any person thus arrested orrestrict 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 toWrit of Habeas Corpus extend the periods during which he can be detainedRequisites for suspension of the privilege without a warrant. When theof 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 publicNote that the privilege of the writ is suspended, officer becomes liable undernot the writ itself. The writ is an order from the RPC Article 125 for "delay in Page 82 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 andThe suspension of the privilege does not agencies over civilians, where civil courts aredestroy petitioners' right and cause of action for able to functiondamages for illegal arrest and detention and Open Court Doctrine: Civilians cannot be triedother 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 andThe 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. Militarypower 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 thea possible future exercise of the latter powers, writ of habeas corpus. The President mustas in this case [Lagman v. Medialdea, supra]. expressly suspend the privilege.Four (4) ways for the Proclamation of c. The Role of Congress [See SectionMartial Law or the Suspension of the 18, par. 1 & 2, Article VII, 1987Privilege of the Writ of Habeas Corpus to beLifted: Constitution]1. Lifting by the President himself 1. Congress may revoke the proclamation of2. Revocation by Congress martial law or suspension of the privilege of the3. Nullification by the Supreme Court writ of habeas corpus before the lapse of 604. 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 inSuspension of the Privilege of the Writ session, it shall convene in accordance with itsof 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 the1. There must be an in invasion or rebellion suspension, the President shall submit a2. Public safety requires the proclamation of report, in person or in writing, to the Congressmartial law all over the Philippines or in any part (meeting in joint session of the action he hasthereof taken). 4. The Congress shall then vote jointly, by aThe 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 orcorpus involve curtailment and suppression of suspension. When it is so revoked, thecivil rights and individual freedom. Thus, the President cannot set aside (or veto) thedeclaration of martial law serves as a warning revocation as he normally would do into citizens that the Executive Department has the case of bills.called upon the military assist in the b. To extend it beyond the 60-daymaintenance of law and order, and while the period of its validity.emergency remains, the citizens must, underpain of arrest and punishment, not act in a Congress can only so extend the proclamationmanner 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWcould be more, as Congress would determine, ii. Before the SC can decide on thebased on the persistence of the emergency. legality of his detention, it must first pass upon the validity of theNote: If Congress fails to act before the proclamation or suspension.measure expires, it can no longer extend it untilthe President again re-declares the measure. e. Cf. R.A. No. 7055 (1991)
If Congress extends the measure, but before An Act Strengthening Civilian Supremacythe period of extension lapses the over the Military by Returning to the Civilrequirements for the proclamation or Courts the Jurisdiction over Certainsuspension no longer exist, Congress can lift Offenses involving Members of the Armedthe extension, since the power to confer implies Forces of the Philippines, other Personsthe power to take back. Subject to Military Law, and the Members of the Philippine National Police, Repealing ford. The Role of the Supreme Court [See the Purpose Certain Presidential DecreesSection 18, par. 3, Article VII, 1987Constitution] R.A. No. 7055 provides that when these1. The Supreme Court may review, in an individuals commit crimes or offensesappropriate proceeding filed by any citizen, the penalized under the RPC, other special penalsufficiency 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 basisof the proclamation or suspension, the Court The assertion of military authority over civiliansconsiders only the information and data cannot rest on the President's power asavailable to the President prior to or at the time Commander in Chief or on any theory of martialof 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 cannotbeyond the pleadings." On the other hand, try and exercise jurisdiction over civilians forCongress may take into consideration not only offenses committed by them and which aredata 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) andpower to revoke by Congress are not only Presidential Decrees issued by thetotally different but likewise independent from President under the 1973 Constitutioneach other although concededly, they have the during Martial Lawsame trajectory, which is, the nullification of the LOIs are presumed to be mere administrativepresidential proclamation. Needless to say, the issuances except when the conditions set outpower of the Court to review can be exercised in Garcia-Padilla v. Enrile exist.independently from the power of revocation ofCongress [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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 judgmentG. Executive clemency ● Pardons: Permanent cancellation of sentence [Black’s Law Dictionary]. It is an act of grace proceeding from the1. 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 theClemencies sentence of a convict granted by a1. In case of impeachment; and Parole Board after serving the2. As otherwise provided in this Constitution, minimum term of the indeterminatee.g. for election offenses: No pardon, amnesty, sentence penalty, without granting aparole, or suspension of sentence for violation pardon, prescribing the terms uponof election laws, rules, and regulations shall be which the sentence shall begranted by the President without the favorable suspended.recommendation by the Commission onElection [Section 5, Article IX, 1987 1. PardonConstitution]. Plenary or Partial3. In cases of legislative and civil contempt Plenary: Extinguishes all the penalties4. Before conviction by final judgment (except imposed upon the offender, includingamnesty) accessory disabilities.5. Without concurrence of a majority of all Partial: Does not extinguish all penaltiesmembers of Congress (in case of amnesty) imposed[Section 5, Article IX, 1987 Constitution] Conditional or Absoluteb. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWb. Cannot be granted in cases of violation of Private act which Public act which theelection laws without the favorable must be pleaded courts could takerecommendation of the COMELEC [Section 5, and proved judicial noticeArticle IX-C, 1987 Constitution]c. Can be granted only after conviction by final Looks forward and Looks backward andjudgment [People v. Salle, G.R. No. 103567 relieves the puts into oblivion the(1995)]. pardonee of the offense itself consequences ofSection 19, Article VII prohibits the grant of the offensepardon whether full or conditional, to anaccused during the pendency of his appeal Extended after trial May be extended atfrom his conviction by the trial court. Any judgment any stageapplication therefore should not be acted uponor the process toward its grant should not bebegun unless the appeal is withdrawn [People 3. Differentiated fromv. Bacang, G.R. No. 116512 (1996)]. a. Probation: Disposition where a defendant after conviction and sentence is releasedd. 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 acontempt or civil contempt convict granted by a Parole Board after servingf. Cannot restore public offices forfeited, even the minimum term of the indeterminateif 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 tonot commit the crime, reinstatement and back Administrative Caseswages 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 muchThe right to seek public elective office is more reason can she grant executive clemencyunequivocally considered as a political right. in administrative cases, which are clearly lessHence, upon acceptance of the pardon, the serious than criminal offenses.pardonee regained his full civil and political b. However, this is limited only to administrativerights – 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 theRevised Penal Code [Risos-Vidal v. 5. Denial of Commission of OffensesCOMELEC, G.R. No. 206666 (2015)]. Persons invoking the benefit of amnesty must first admit to their complicity in the crimes2. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWJurisprudence the President cannot be compelled to submit aAmnesty Proclamation No. 76 applies even to treaty to the Senate for concurrence; he hasHukbalahaps already undergoing sentence the sole power to submit it to the Senate and/orupon 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 allmembers of the Hukbalahap [Tolentino v. 3. Military Bases TreatyCatoy, G.R. No. L-2503 (1948)]. SECTION 25, ARTICLE XVIII. After the expiration in 1991 of the Agreement between the Philippines andThe SC agreed with the Sandiganbayan that in the United States of America concerning Militaryfact the petitioners were expressly disqualified Bases, foreign military bases, troops, or facilitiesfrom amnesty. The acts for which they were shall not be allowed in the Philippines except underconvicted were ordinary crimes without any a treaty duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of thepolitical complexion and consisting only of votes cast by the people in a national referendumdiversion of public funds to private profit. The held for that purpose, and recognized as a treaty byamnesty proclamation covered only acts in the the other contracting State.furtherance of resistance to duly constitutedauthorities of the Republic and applies only tomembers of the MNLF, or other anti- The President, however, may enter into angovernment 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, orH. Diplomatic Power facilities; or b. It merely aims to implement an existing law1. Scope of Diplomatic Power or treaty.The President, being the head of state, isregarded as the sole organ and authority in Section 25 refers solely to the initial entry of theexternal relations and is the country’s sole foreign military bases, troops, or facilities.representative with foreign nations. As the chiefarchitect of foreign policy, the President acts as To determine whether a military base or facilitythe country’s mouthpiece with respect to in the Philippines, which houses or is accessedinternational affairs. by foreign military troops, is foreign or remainsThe 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; andc. Maintain diplomatic relations; c. National security and territorial integrityd. 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 upon2. Treaty-Making Power to provide for the joint RP-US militaryTreaty: As defined by the Vienna Convention exercises, is simply an implementingon the Law of Treaties, “an international agreement to the main RP-US Military Defenseinstrument concluded between States in Treaty. The VFA is therefore valid for it is awritten form and governed by international law, presence “allowed under” the RP-US Mutualwhether embodied in a single instrument or in Defense Treaty. Since the RP-US Mutualtwo or more related instruments, and whatever Defense Treaty itself has been ratified andits particular designation” [Bayan v. Executive concurred in by both the Philippine Senate andSecretary, G.R. No. 138570 (2000)]. the US Senate, there is no violation of the Constitutional provision resulting from suchNote: 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW5. Executive Agreements 7. Deportation of Undesirable Aliensa. Entered into by the President The President may deport only according tob. May be entered into without the concurrence grounds enumerated by law, otherwise it wouldof the Senate. be unreasonable and undemocratic [Qua Cheec. Distinguished from treaties — Gan v. Deportation Board, G.R. No. L-10280International agreements involving political (1963)].issues or changes in national policy and thoseinvolving international agreements of 8. Two (2) Ways of Deporting anpermanent character usually take the form of Undesirable Alientreaties. But the international agreements a. By order of the President after dueinvolving adjustments in detail carrying out investigation [Chapter 3, Book III, Admin. Codewell-established national policies and traditions of 1987];and those involving a more or less temporary b. By the Commissioner of Immigration undercharacter usually take the form of executive Section 37 of the Immigration Law [Qua Cheeagreements [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 andHowever, from the point of view of international to investigate them subject to deportation arelaw, 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 provisionnegotiating functionaries have remained within defining the power to deport aliens because thetheir powers [USAFFE Veterans Assn. v. intention of the law is to grant the ChiefTreasurer, G.R. No. L-10500 (1959)]. Executive the full discretion to determine whether an alien’s residence in the country isNote: An executive agreement that does not so undesirable as to affect the security, welfarerequire 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 andthat, under the Constitution, is the product of exclusive judge of the existence of facts whichthe ratifying acts of the Executive and the would warrant the deportation of aliens [GoSenate [Bayan Muna v. Romulo, supra]. Tek v. Deportation Board, G.R. No. L-23846 (1977)].6. Two (2) Classes of ExecutiveAgreements I. Powers Relative to1. Agreements made purely as executive actsaffecting external relations and independent of Appropriation Measuresor without legislative authorization, which maybe termed as presidential agreements; and 1. Contracting and Guaranteeing2. Agreements entered into in pursuance of Foreign Loans; Requisitesacts of Congress, or congressional-executive a. With the concurrence of the monetary boardagreements. [Section 20, Article VIII, 1987 Constitution] b. Subject to limitations as may be provided byAlthough the President may, under the law [Section 2, Article XII, 1987 Constitution]American constitutional system, enter into c. Information on foreign loans obtained orexecutive agreements without previous guaranteed shall be made available to thelegislative authority, he may not, by executive public [Section 2, Article XII, 1987 Constitution]agreement, enter into a transaction which isprohibited by statutes enacted prior thereto. He Cf. R.A. No. 4860may not defeat legislative enactments that Congress may provide guidelines forhave acquired the status of law by indirectly contracting or guaranteeing foreign loans, andrepealing the same through an executive have these rules enforced through theagreement providing for the performance of the Monetary Board. But for Congress to grantvery act prohibited by said laws [Gonzales v. prior approval is a totally different issue. At anyHechanova, G.R. No. L-21897 (1963)]. rate, the present power, which was first introduced in the 1973 Constitution, was based Page 88 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWon R.A. No. 4860 or the Foreign Loan Act. d. Other duties or imposts within the frameworkWhat used to be a statutory grant of power is of the national development program of thenow a constitutional grant which Congress governmentcannot take away, but only regulate. 6. Rationale for Delegation2. Role of Congress in such Foreign Highly technical nature of internationalLoans commerce, and the need to constantly and withThe President does not need prior approval by relative ease adapt the rates to prevailingCongress: commercial standards.a. Because the Constitution places the powerto check the President’s power on the J. Delegated PowersMonetary Board;b. BUT Congress may provide guidelines and 1. Principlehave them enforced through the Monetary The President, under martial rule or in aBoard revolutionary government, may exercise delegated legislative powers [See Section3. Preparing and Submitting the 23(2), Article VI, 1987 Constitution]. CongressBudget 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, toThe budget is the plan indicating: exercise powers necessary and proper to carrya. Expenditures of the government; out a declared national policyb. Sources of financing; and b. Unless sooner withdrawn by resolution of thec. Receipts from revenue-raising measures Congress, such powers shall cease upon theThe budget is the upper limit of the next adjournment thereof.appropriations bill to be passed by Congress.Through the budget, therefore, the Presidentreveals the priorities of the government. 3. Commander-in-Chief powers vs. Emergency Powers4. Program of Expenditure Commander-in- Emergency PowersEven upon the enactment of the General Chief powersAppropriations Act, the release of funds fromthe Treasury is still subject to a Program of When the President When the PresidentExpenditure, proposed by the Secretary of acts under the acts under theBudget, 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 athe basis for the release of funds [TESDA v. under a CongressionalCOA, 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 include5. Fixing of Tariff Rates [Section 28, the law- makingArticle VI, 1987 Constitution] power.The Congress may, by law, authorize thePresident to fix (1) within specified limits, and 4. Power to Issue Rules and(2) subject to such limitations and restrictions Regulationsas it may impose: This power is:a. Tariff rates; a. For a limited period; andb. Import and export quotas; b. Subject to such restrictions as Congressc. Tonnage and wharfa*ge dues; may provide. Page 89 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW5. When Emergency Powers Cease In Marcos v. Manglapus, the Court held thata. According to the text of the Constitution, the then-President Corazon Aquino had the powerpower 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. 160093b. 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 Exceptionsand the cases [Barlongay]: a. When the veto of the President is overriddena. The Constitution states that the emergency by 2/3 vote of all the Members of Congress, thepowers shall cease upon the next adjournment President returns the bill with his veto messageof Congress unless sooner withdrawn by to the House where the bill originated, whichresolution of Congress. shall then enter the objections at large in itsb. Cases tell us that the emergency powers Journal and proceed to reconsider it. If, aftershall cease upon resumption of session. such reconsideration, two-thirds of all thec. Reconciling the two: it would not be enough Members of such House shall agree to passfor Congress to just resume session in order the bill, it shall be sent, together with thethat the emergency powers shall cease. It has objections, to the other House by which it shallto pass a resolution withdrawing such likewise be reconsidered, and if approved byemergency powers, otherwise such powers two-thirds of all the Members of that House, itshall cease. If no resolution withdrawing such shall become a law.;emergency powers is passed, such powers b. The bill lapsed into law because of theshall cease upon the next adjournment of President’s failure to act on the bill within thirtyCongress. (30) days [Section 27, Article VI, 1987 Constitution]; andK. Residual Powers c. The bill passed is the special law to elect the President and Vice-President.Residual powers are unstated powerspossessed 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. Itincludes powers unrelated to the execution ofany provision of law [Marcos v. Manglapus,G.R. No. 88211 (1988)].
Page 90 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWM. Executive Privilege 4. Requisites for invoking Presidential Privilege1. Two (2) Kinds of Executive Privilege a. Formal claim of privilege: For the privilegein Neri v. Senate Committee [G.R. No. to apply there must be a formal claim of the privilege. Only the President or the Executive180643 (2008)] Secretary (by authority of the President) cana. Presidential Communications Privilege invoke the privilege; and(President): communications are b. Specificity requirement: A formal andpresumptively privileged; the president must be proper claim of executive privilege requires agiven freedom to explore alternatives in policy- specific designation and description of themaking. documents within its scope as well as preciseb. Deliberative Process Privilege (Executive and certain reasons for preservingOfficials): refer to materials that comprise part confidentiality. Without this specificity, it isof a process by which governmental decisions impossible for a court to analyze the claim shortand policies are formulated. This includes of disclosure of the very thing sought to bediplomatic 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 privilegePresidents, beginning with Washington, on the of presidential communications when invokedground that the information is of such nature by the President on a matter clearly within thethat its disclosure would subvert crucial military domain of the Executive, the said presumptionor diplomatic objectives. dictates that the same be recognized and beb. Informer’s privilege: The privilege of the given preference or priority, in the absence ofGovernment not to disclose the identity of proof of a compelling or critical need forpersons who furnish information of violations of disclosure by the one assailing suchlaw 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 ofdeliberations: Has been said to attach to Privilegeintragovernmental documents reflecting a. Quintessential and non-delegableadvisory opinions, recommendations and presidential power: Power subject of thedeliberations comprising part of a process by legislative inquiry must be expressly granted bywhich 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 be3. Scope authored, solicited, and received by a closeThis jurisdiction recognizes the common law advisor of the President or the Presidentholding that there is a "governmental privilege himself. The judicial test is that an advisor mustagainst public disclosure with respect to state be in “operational proximity” with the Presidentsecrets regarding military, diplomatic and other (i.e. officials who stand proximate to thenational 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 thelimitation on the right to information. Executive’s organizational structure) c. No adequate need to limit privilege: TheNote: Executive privilege is properly invoked in privilege may be overcome by a showing ofrelation to specific categories of information adequate need, such that the informationand 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 informationPresident (and the Executive Secretary, by elsewhere by an appropriate investigatingorder 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW6. Diplomatic Negotiations Privilege permanently chosen andWhile the final text of the Japan-Philippines disabled qualified)Economic Partnership Agreement (JPEPA)may not be kept perpetually confidential, the During the termoffers exchanged by the parties during thenegotiations continue to be privileged evenafter the JPEPA is published. The Japanese Death, permanent Vice-President torepresentatives submitted their offers with the disability, removal serve the unexpiredunderstanding that “historic confidentiality” from office, or termwould govern the same. Disclosing these offers resignation of thecould impair the ability of the Philippines to deal Presidentnot only with Japan but with other foreigngovernments in future negotiations. The Death, permanent Senate President or,objective of the privilege is to enhance the disability, removal in case of hisquality of agency decisions. In assessing from office, or inability, the Speakerclaims of privilege for diplomatic negotiations, resignation of both of the House shallthe test is whether the privilege being claimed the President and act as Presidentis indeed supported by public policy. This Vice-President (until a President orprivilege may be overcome upon “sufficient a Vice-Presidentshowing of need” [Akbayan v. Aquino, supra]. shall have been chosen andN. Rules on Succession qualified)
Temporary disability resulting to1. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWelected 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, thePresident 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 shallOrder 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 aPermanent 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 theEffect of permanent incapacity: Order of Congress. Appropriations for the special electionsuccession in Section 7, Article VII is followed. shall be charged against any current appropriations and shall be exempt from the requirements ofNo 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 theNote: Where there is a constitutional limit to the Presidency during the Termterm 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, orof 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 fromSenate, 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 theduring 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 thatc. 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 arisingfrom his disability can occur in any of the If the Congress, within ten days after receipt offollowing 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 Congressthe powers and duties of the office as Acting in Case of Vacancy in the Offices ofPresident. the President and the Vice- President (2) Section 11, Article VII SECTION 10, ARTICLE VII. The Congress shall, ata. Voluntary written declaration of the President 10AM of the 3rd day after the vacancy in the officesWhenever 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 needHouse of Representatives his written of a call; and 2. Within seven days, enact a law calling for adeclaration 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 theCabinet The bill calling such special election shall be deemed certified under paragraph 2, Section 26, Article VI of this Constitution and shall become lawWhenever 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 beand to the Speaker of the House of charged against any current appropriations and shallRepresentatives 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. Theand 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 withinc. Determination by Congress by 2/3 vote of all eighteen months before the date of the nextmembers, voting separately, acting on the presidential election.
Page 94 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW (4) Vacancy timetable:a. 0 days – vacancy occursb. 3 days – Congress convenesc. 10 days – Law providing for special electionsshould be enactedd. 55 – 70 days – Elections should be heldwithin this periode. 85 – 100 days – Canvassing by Congressshould 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.
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V. JUDICIAL DEPARTMENT Judicial Power Judicial Review
Where vestedA. Judicial PowerOn whom vested: The judicial power shall be Supreme Court & lower courtsvested in: a. One Supreme Court; and Definition b. In such lower courts as may be established by law. Duty to settle actual Power to determineWhat: Judicial power includes the duty of the controversies the constitutionalitycourts 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 orWhere applicable: On the part of any branch excess of jurisdictionor instrumentality of the Government [Section on the part of any1, Article VIII, 1987 Constitution] branch or instrumentality of theThe Supreme Court is entrusted exclusively governmentwith the judicial power to adjudicate with finality [Article VIII, Sectionall justiciable disputes, public and private. No 1 (2), Constitution].other department or agency may pass upon itsjudgments or declare them unjust [In Re Where applicableLaureta and Maravilla, G.R. No. 68635 (1987)]. Any branch or instrumentality of theAbsent a showing of a violation of the governmentConstitution or grave abuse of discretion, theCourt cannot use its judicial power to inquire Requisites for exerciseinto allegations that, in enacting a law, a Houseof 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; earliestB. Judicial Review execute a decision opportunity; and lis thereof motaThe Court’s exercise of its traditionaljurisdiction is rooted in its power of judicial Where the legislature or executive branch actsreview which gives the Court the authority to beyond the scope of its constitutional power, itstrike down acts of the legislative and/or becomes the duty of the judiciary to declareexecutive, constitutional bodies or what the other branches of the governmentadministrative 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 powerand is a power inherent in all courts [Villanueva 1. Requisitesv. Judicial and Bar Council, G.R. No. 211833(2015)]. Requisites of Judicial Review 1. There must be an actual case orJudicial Power vs. Judicial Review [Miranda controversy;v. Aguirre, G.R. No. 133064 (1999)] Page 96 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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. 45685Generally, a party will be allowed to litigate only (1937)].when these conditions sine qua non arepresent, especially when the constitutionality of This may be brushed aside by the court as aan act by a co-equal branch of government is mere procedural technicality in view of publicput in issue [Chavez v. Judicial and Bar interest or transcendental importance of theCouncil, G.R. No. 202242 (2012)]. issues involved [Kilosbayan v. Guingona, G.R. No. 113375 (1994)].a. Actual case or controversyAn actual case or controversy exists when a Forms of locus standicase involves a clash of legal rights or anassertion of opposite legal claims that the 1. Associational or third-party standingcourts can resolve through applying law and The association may assert the concerns of itsjurisprudence. An actual case is ripe for constituents as long as the interest sought toadjudication when the act being challenged has be protected is germane to the association’sa 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 toFor a case to be considered ripe for another party, the former is allowed standing toadjudication, the following prerequisites must invoke fundamental due process or equalconcur: 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 standiLegal standing or locus standi refers to a 3. Environmental standingparty’s personal and substantial interest in a Citizens are allowed to bring a suit to enforcecase, arising from the direct injury it has environmental laws on the principle thatsustained or will sustain as a result of the humans are stewards of nature and as part ofchallenged 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 questioninvolved, or a mere incidental interest [CREBA 4. Governmental standingv. Energy Regulatory Commission, G.R. No. The government is the proper party to question174696 (2010)]. the statute because it is always interested in the integrity of its Constitution or the statutesThe interest of the party plaintiff must be involved and can set aside a law that violatedpersonal and not one based on a desire to the Constitution [People v. Vera, supra]. Page 97 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 5. Legislative standing interest.There must be a claim from the legislators that [White Light Corp. v. Citythe 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 bea claim of illegal disbursem*nt of public fundsor 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 originalThere must be a showing of obvious interest in jurisdiction over the case. The earliestthe 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 RealtySpecial 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 disbursem*nt [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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWA “judicial question” or purely justiciable issue policy which the President decided upon basedimplies a given right, legally demandable and on his wisdom that it shall promote nationalenforceable, an act or omission violative of healing and forgiveness. There being no taintsuch right, and a remedy granted and of grave abuse in the exercise of suchsanctioned 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 aNote: In 2016, the SC ruled that President formulation of controlling principles toDuterte's decision to have the remains of guide the bench, the bar, and theMarcos interred at the Libingan Ng Mga Bayani public; and(LNMB) was not a justiciable controversy but a 4. The case is capable of repetition yetpolitical question. The issue was a question of evading review [Islamic Da’wah v.
Page 99 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW Executive Secretary, G.R. No. 216870 solely based on facts and applicable (2020)]. law, free from political or popular influence4. Operative Fact Doctrine 2. Institutional independence - refers to the collective independence of theThe operative fact doctrine recognizes the judiciary or freedom from outsideexistence and validity of a legal provision prior control, e.g., fiscal autonomyto its being declared as unconstitutional andhence, legitimizes otherwise invalid acts done 2. Safeguards of Judicialpursuant thereto because of considerations of Independencepracticality and fairness. In this regard, certainacts done pursuant to a legal provision which Provision Safeguardswas just recently declared as unconstitutional The SC cannot be abolishedby the Court cannot be anymore undone Article nor may its membership or thebecause not only would it be highly impractical VIII, manner of its meetings beto do so, but more so, unfair to those who have Section 4 changed by mere legislation.relied on the said legal provision prior to thetime it was struck down [Film Development The members of the judiciaryCouncil of the Phils. V. Colon Heritage Realty are not subject to confirmationCorp., G.R. 203754 (2019)]. by the Commission on Appointments.The doctrine is applicable when a declarationof unconstitutionality will impose an undue The members of the SC mayburden on those who have relied on the invalid Article XI, not be removed from officelaw, 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 deprivedL-28113 (1969)]. Article of its minimum original and VIII, appellate jurisdiction asApplicability: The doctrine "applies only to Section 2 prescribed in Article X,cases where extraordinary circ*mstances Section 5 of the Constitution.exist, and only when the extraordinarycirc*mstances have met the stringent The appellate jurisdiction ofconditions 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 andAquino III, G.R. Nos. 199802 and 208488)] concurrence.
General Rule: The interpretation or Article The SC has administrativedeclaration of unconstitutionality is retroactive VIII, supervision over all lowerin that it applies from the law’s effectivity. Section 6 courts and their personnel.
Exception: Subsequent declaration of Article The SC has exclusive powerunconstitutionality does not nullify the acts VIII, to discipline judges of lowerexercised 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 securityC. 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 designatedThe 2 distinct concepts of judicial Article VII, to any agency performingindependence are: Section 12 quasi-judicial or administrative 1. Decisional independence - refers to a functions. judge’s ability to render decisions Page 100 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 RequirementsD. Appointments to the Supreme Court Judiciary 1. Natural born citizens 2. At least 40 years of age1. 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 Article15 years or VIII, Section 7(2), i.e. “The Congressmore as a shall prescribe the qualifications ofjudge 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 BarOR 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 providedof law in the indispensable requisite by law.PH for thesame 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWperform any trust or to assume any duty not the House and Senate Committees on Justicepertaining to or connected with the is invalid. Any member of Congress, whetheradministering of judicial functions [Meralco v. from the upper or lower house, isPasay Transportation Co. G.R. No. L-37838 constitutionally empowered to represent the(1932)]. entire Congress.A judge in the CFI shall not be detailedwith the Department of Justice to perform The framers intended the JBC to be composedadministrative functions as this contravenes of 7 members only. Intent is for each co-equalthe 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 other2. 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 year3. Secretary ex-officio [Section 8 (3), Article VIII, 1987 Constitution] b. PowersClerk of Court of the Supreme Court, who shallkeep a record of its proceedings; not a member 1. Primary functionof the JBC. Recommend appointees to the judiciary; may exercise such other functions and duties as theIn 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 forChief Justice, should participate in the Note: Judges may not be appointed in anydeliberations for the selection of nominees for acting or temporary capacity as this wouldthe said vacant post and preside over the undermine the independence of the judiciary.proceedings, pursuant to Section 12 ofRepublic Act No. 296, or the Judiciary Act of 2. Supervisory authority of SC over1948 [Famela Dulay v. Judicial and Bar JBCCouncil, G.R. No. 202143 (2012)] Section 8, Article VIII of the Constitution provides “A Judicial and Bar Council is hereby4. Appointment, tenure, and salary created under the supervision of the Supreme Court.” The supervisory authority of the CourtEx-officio members over the JBC covers the overseeing ofThe position in the Council is good only while compliance with its rule [Jardeleza v. Judicialthe person is the occupant of the office. and Bar Council, G.R. No. 213181 (2014)].
Only ONE representative from Congress: Supervisory power, when contrasted withFormer practices of giving ½ vote or (more control, is the power of mere oversight over anrecently) 1 full vote each for the Chairmen of inferior body; it does not include any restraining Page 102 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWauthority 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 thannominees 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 DivisionAfterwards, any vacancy in the Supreme Court where the required number of votesshall be filed within ninety (90) days from the to decide or resolve (the majority ofoccurrence thereof [Section 4(1), Article VIII, those who took part in the deliberations1987 Constitution]. on the issues in the case and voted thereon, and in no case less than 3For 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 orArticle VIII, 1987 Constitution]. principle of law laid down by the court in a decision rendered en banc or inThe prohibition against midnight appointments division [Section 4(3), Article VIII, 1987does 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 lawE. 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 divisionsa. En banc and division cases 1. Cases decided with the concurrence ofEn banc: Cases decided with the concurrence a majority of the Members who actuallyof a majority of the Members who actually took took part in the deliberations and votedpart in the deliberations and voted. 2. In no case without the concurrence of at least three (3) of such Membersb. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW The SC en banc is not an appellate court vis- c. Administrative supervision overà-vis its Divisions. The only constraint is that lower courtsany doctrine or principle of law laid down by theCourt, either rendered en banc or in division, Administrative Powers of the Suprememay be overturned or reversed only by the Court:Court sitting en banc [PUP v. Firestone 1. Assign temporarily judges of lowerCeramics, 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 thePhilippine Islands. The Supreme Court consent of the judge concerned;remains a unit notwithstanding it works in 3. Order a change of venue or place ofdivisions. 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 ofone of these divisions and decisions rendered the Judiciary in accordance with thetherein 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 theconsidered 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 area. Procedural rule-making minimum requirements. The JBC mayThe Supreme Court shall have the following determine or add more qualifications whenpowers: (5) Promulgate rules concerning the such policies are necessary and incidental toprotection and enforcement of constitutional the function conferred in the Constitutionrights, pleading, practice, and procedure in all [Villanueva v. JBC, G.R. No. 211833 (2015)].courts, the admission to the practice of law, theintegrated bar, and legal assistance to the d. Period for deciding casesunder-privileged [Section 5 (5), Article VIII, [Section 5(1), Article VIII, 1987 Constitution]1987 Constitution]. Lower Supreme Other Lower CollegiateThe 1987 Constitution took away the power of Court Courts CourtsCongress to repeal, alter, or supplement rulesconcerning pleading, practice and procedure. 12 months, 3 months,The power to promulgate rules of pleading, unless unlesspractice and procedure is no longer shared by 24 months reduced by reduced bythe Court with Congress, more so with the the SC the SCExecutive [Echegaray v. Secretary of Justice,G.R. No. 132601 (1991)]. Notes:Because of Article VIII, Section 5, Congress a. Period counted from date ofmay no longer grant legislative exemptions submission.from payment of court fees [Baguio Market b. Case deemed submitted upon filing ofVendors Multi-Purpose Cooperative v. Cabato- the last pleading, brief or memorandumCortes, G.R. No. 165922 (2010)]. required by the Rules or the court [Section 15(2), Article VIII, 1987b. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWThis 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 Courttheir 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 orperiod required by law constitutes a ground for validity of any treaty, international oradministrative liability against the defaulting executive agreement, law, presidentialjudge. 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 circ*mstances where the Court believes that resolving the issueEven when there is delay and no decision or of constitutionality of a law or regulationresolution is made within the prescribed period, at the first instance is of paramountthere is no automatic affirmance of the importance and immediately affects theappealed decision [Sesbreño v. CA, G.R. No. social, economic and moral well-being161390 (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 anyTherefore, 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 anymonth 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 penaltySandiganbayan, A. M. No. 00-8-05- SC imposed is reclusion perpetua or(2001)]. higher; e. Cases where only a question of law ise. Original and appellate jurisdiction involved;Jurisdiction is the authority to hear anddetermine a case [U.S. v. Limsiongco, supra]. Note: A party who has not appealed from a decision may not obtain any affirmative relieff. Original jurisdiction [Section 5(1), from the appellate court other than what he hadArticle 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 toNote: Original jurisdiction also extends to writs grant the relief sought by injunction. Theof amparo, habeas data, and the environmental rationale for the rule is founded on the conceptwrit of kalikasan. of jurisdiction: a court that acquires jurisdiction over case and renders judgment therein hasThe Supreme Court’s original jurisdiction to jurisdiction over its judgment, to the exclusionissue writs of certiorari (as well as prohibition, of all other coordinate courts, for its executionmandamus, quo warranto, habeas corpus and and over all its incidents, and to control, ininjunction) is not exclusive. Its jurisdiction is furtherance of justice, the conduct of ministerialconcurrent with the CA, and with the RTC in officers acting in connection with this judgmentproper cases [Cruz v. Judge Gingoyon, G.R. [United Alloy Philippines v. UCPB, G.R. No.No. 170404 (2011)] 179257 (2015)].
Page 105 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWi. Finality of judgmentsA decision that has acquired finality becomesimmutable and unalterable and may no longerbe modified in any respect even if themodification is meant to correct erroneousconclusions of fact or law and whether it wasmade by the court that rendered it or by thehighest court of the land [Genato v. Viola, G.R.No. 169706 (2010)].
j. Requirements for decisions andresolutionsThe conclusions of the Supreme Court in anycase submitted to it for decision en banc or indivision shall be reached in consultation beforethe case is assigned to a Member for thewriting of the opinion of the Court. Acertification to this effect signed by the ChiefJustice shall be issued and copy thereofattached to the record of the case and servedupon the parties. Any Members who took nopart, or dissented, or abstained from a decisionor resolution, must state the reason therefor.The same requirements shall be observed byall lower collegiate courts [Section 13, ArticleVIII, 1987 Constitution].
No decision shall be rendered by any courtwithout expressing therein clearly and distinctlythe facts and the law on which it is based.
No petition for review or motion forreconsideration of a decision of the court shallbe refused due course or denied without tatingthe legal basis therefore [Section 14, ArticleVIII, 1987 Constitution].A "Resolution" is not a "Decision" within themeaning of Section 14 of Article VIII. Thismandate applies only in cases "submitted fordecision," i.e., given due course and after thefiling of Briefs or Memoranda and/or otherpleadings, as the case may be. It does notapply to an Order or Resolution refusing duecourse to a Petition for certiorari [Nunal v.Commission on Audit, G.R. No. 78648 (1989)].
Page 106 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW
VI. CONSTITUTIONAL 2. Promotional Appointment of Commissioner to Chairman COMMISSIONS Section 1(2), Article IX-D of the Constitution does not prohibit a promotional appointmentA. 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 [SectionThe grant of a constitutional commission’s 1(2), Article IX-D, 1987 Constitution].rulemaking power is untouchable by Congress, c. The promotional appointment mustabsent a constitutional amendment or revision. conform to the rotational plan or the staggering of terms in the commissionThe laws that the Commission interprets and membership [Funa v. Commission onenforces fall within the prerogative of Audit, G.R. No. 192791 (2012)].Congress. As an administrative agency, itsquasi-legislative power is subject to the same 3. Jurisprudence on Section 1(2),limitations applicable to other administrative Article IX-Dbodies [Trade and Investment Development The appointment of members of any of theCorporation of the Philippines v. Civil Service three constitutional commissions, after theCommission, G.R. No. 182249 (2013)]. expiration of the uneven terms of office of the first set of commissioners, shall always be for a1. Constitutional Safeguards to fixed term of seven (7) years; an appointmentEnsure Independence of for a lesser period is void andCommissions 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWlength of service will not exceed seven (7) a. Functionsyears and provided further that the vacancy in 1. In the exercise of its powers tothe position of Chairman resulted from death, implement R.A. No. 6850 (grantingresignation, disability or removal by civil service eligibility to employeesimpeachment. This is not a reappointment, but under provisional or temporary statuseffectively a new appointment. who have rendered seven years of efficient service), the CSC enjoys aAny member of the Commission cannot be wide latitude of discretion, and mayappointed or designated in a temporary or not be compelled by mandamusacting capacity. [Torregoza v. Civil Service Commission, G.R. No. 101526 (1992)].4. Term of Office of CommissionMembers 2. Under the Administrative Code of 1987,The terms of the first Chairmen and the Civil Service Commission has theCommissioners of the Constitutional power to hear and decideCommissions under the 1987 Constitution administrative cases instituted beforemust start on a common date, irrespective it directly or on appeal, includingof the variations in the dates of appointments contested appointments.and qualifications of the appointees, in orderthat the expiration of the first terms of seven, 3. The Commission has originalfive and three years should lead to the jurisdiction to hear and decide aregular recurrence of the two-year interval complaint for cheating in the Civilbetween the expiration of the terms. This Service examinations committed bycommon 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. Commissionon Audit, G. R. No. 140335 (2000)]. 4. It is the intent of the Civil Service Law, in requiring the establishment ofTerm – The time during which the officer may a grievance procedure, that decisionsclaim to hold office as of right, and fixes the of lower level officials (in casesinterval after which the several incumbents involving personnel actions) beshall succeed one another appealed to the agency head, then to the Civil Service CommissionTenure – 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 beshorter than the term for reasons within or As the central personnel agency of thebeyond 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 readB. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWcharters [Section 2(1), Article IX-B, 1987 involves the enforcement of labor laws andConstitution]. 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 jurisdictiongovernment-owned or controlled corporations on administrative disciplinary cases involvingwhich are organized as subsidiaries of the imposition of a penalty of suspensiongovernment-owned or controlled corporations of more than 30 days or fine in an amountunder 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 ElectionsNote: The University of the Philippines,having an original charter, is clearly part of the a. Powers and functionsCSC [University of the Philippines v. Regino, 1. Enforce all laws relating to the conductG.R. No. 88167 (1993)]. of election, plebiscite, initiative, referendum and recall;c. JurisdictionThe CSC has been granted by the Constitution Initiative: The power of the people toand the Administrative Code jurisdiction over propose amendments to the Constitution or toall civil service positions in the government propose and enact legislation through anservice, whether career or non-career [Civil election called for that purpose. There are 3Service Commission v. Sojor, G.R. No. 168766 systems of initiative: Initiative on the(2008); See CSC Resolution No. 991936 Constitution, initiative on statutes, and initiativedetailing 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 touniversity has the sole power of administration approve or reject legislation through an electionover 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 localconcurrent 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 relationshipd. Appellate Jurisdiction of a local elective official for loss of confidenceThe appellate power of the CSC will only apply prior to the expiration of his term through thewhen the subject of the administrative cases will of the electorate.filed against erring employees is in connectionwith the duties and functions of their office, and Plebiscite: The submission of constitutionalnot in cases where the acts of the complainant amendments or important legislativearose 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 electionIn administrative disciplinary cases decided by spending, and to prevent and penalizethe COA, the proper remedy in case of an all forms of election frauds, offenses,adverse decision is an appeal to the Civil malpractices, and nuisanceService Commission and not a petition for candidacies;certiorari before SC under Rule 64 [Galindo v. 3. Submit to the President and theCommission on Audit, G.R. No. 210788 Congress, a comprehensive report on(2017)]. the conduct of each election, plebiscite, initiative, referendum, orThe Philippine National Red Cross, although recall;not a GOCC, is sui generis in character. The 4. Decide administrative questionssui generis character of PNRC requires the pertaining to election except the rightcourt to approach controversies involving the to vote (the jurisdiction of which is withPNRC on a case-to-case basis. Since the issue the judiciary); Page 109 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWPower to declare failure of election: The for its principal object the endorsem*nt of aCOMELEC may exercise such power motu candidate only.proprio or upon a verified petition, and thehearing 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 theNote: Section 43, R.A. No. 9369 or the time, place and manner of the rendition of theAutomated Election System Law of January message. In no situation may the speech be2007 grants to the Department of Justice prohibited or censored on the basis of itsconcurrent 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 overthis 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 providedWhile respondent COMELEC cited the [Garcia v. De Jesus, G.R. No. 97108-09Constitution, laws and jurisprudence to support (1992)].their position that they had the power toregulate the tarpaulin, however, all these c. Exclusive jurisdictionprovisions pertain to candidates and political All contests relating to the elections, returnsparties. 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 expressionexercised by a non-candidate. Regulation of d. Jurisdiction over intra-party disputeselection paraphernalia will still be The COMELEC’s powers and functions underconstitutionally valid if it reaches into speech of the Constitution, "include the ascertainment ofpersons who are not candidates or who do not the identity of the political party and itsspeak as members of a political party if they legitimate officers responsible for its acts." Theare not candidates, only if what is regulated is power to register political parties necessarilydeclarative 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWmay resolve an intra-party leadership dispute, granting institution to submit such auditin 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–governmentale. Appellate jurisdiction entities receiving subsidy or equity, directly orAll contests involving elected municipal officials indirectly, from or through the government” isdecided by trial courts of general jurisdiction or Section 11(1), Book V of the Administrativeinvolving elective barangay officials decided by Code, which authorizes the COA to audita court of limited jurisdiction [Garcia v. De accounts of non–governmental entitiesJesus, supra]. “required to pay…or have government share” but only with respect to “funds…coming fromf. Jurisdiction to issue writs of certiorari or through the government.”Interpreting the phrase "in aid of its appellatejurisdiction,” if a case may be appealed to COA does not have the exclusive power toa particular court or judicial tribunal or body, examine and audit government agencies. Thethen said court or judicial tribunal or body framers of the Constitution were fully aware ofhas jurisdiction to issue the extraordinary the need to allow independent private audit ofwrit of certiorari, in aid of its appellate certain government agencies in addition to thejurisdiction [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 anda. Powers and functions examination;Examine, audit, and settle accounts pertaining ● Establish techniques and methodsto 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 Assistantare 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 thePhilippines v. COA, G.R. No. 177131 (2011)]. Note: No law shall be passed exempting any entity of the Government or its subsidiaries inThe Constitution formally embodies the long- any guise whatsoever, or any investment ofestablished rule that private entities who public funds, from the jurisdiction of thehandle 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 BarCoconut Philippines, Inc. v. Tantuico, G.R. No. Congress cannot exempt foreign grants fromL-47051 (1988)]. the jurisdiction of the Commission on Audit. Its jurisdiction extends to all government-owned orb. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWCOA’s authority to take cognizance of claims 4. Career Officers: Other than thoseis circ*mscribed by cases holding statutes belonging to the Career Executiveof similar import to mean only liquidated claims, Service who are appointed by theor those determined or readily determinable President, e.g. those in the foreignfrom vouchers, invoices, and such other servicepapers within reach of accounting officers 5. Positions in the AFP, although governed[Euro-Med Laboratories, Phil. Inc. v. Province by a different merit systemof Batangas, G.R. No. 148106 (2006)]. 6. Personnel of GOCCs with original chartersNo jurisdiction over their validity or 7. Permanent laborers, whether skilled,constitutionality: The jurisdiction of the COA semi-skilled, or unskilledover money claims against the governmentdoes not include the power to rule on the Non-career Service: Characterized byconstitutionality 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 duration1. Civil Service Commission 1. Elective officials, and their personal and confidential staff;a. Composition 2. Department heads and officials ofA Chairman and two (2) Commissioners. Cabinet rank who hold office at the pleasure of the President, and theirb. Qualifications [Section 1(1), Article personal and confidential staff;IX-B, 1987 Constitution] 3. Chairmen and members of commissionsa. 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 thed. 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 thec. Term of office civil service and upon all matters relating to theSeven (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 ServiceCareer 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 qualificationsdetermined, as far as practicable, by of the candidates for appointments and playscompetitive examinations, OR (b) based on no role in the choice of the person to behighly technical qualifications; with opportunity appointed [Bernas].for advancement to higher career positionsand security of tenure. General Rule: Appointments are made only according to merit and fitness to be1. 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 lays3. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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. Composition3. 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. Qualificationsf. 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 and3. 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 org. Removal or suspension only for indirectly, in any contract with, or in anycause franchise or privilege granted by, theNo officer or employee of the civil service shall Government, its subdivisions, agencies orbe removed or suspended except for cause instrumentalities, including GOCCs or theirprovided by law [Section 2 (2), Article IX-B, subsidiaries [Section 2, Article IX-A, 19871987 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 thea. Composition independence vested in the CSC by the 1987A Chairman and six (6) Commissioners.
Page 113 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWConstitution [Funa v. Civil Service quasi-judicial functions may beCommission, G.R. No. 191672 (2014)]. reviewed by the Supreme Court. b. The mode of review is a petition forE. 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 theRendered in Exercise of Quasi-Judicial case will be brought to the Court ofFunctions Appeals.
Rendered in Exercise of Administrative1. Decisions FunctionsEach Commission shall decide by a majorityvote of all its members (NOT only those who SECTION 4, ARTICLE IX-A. The Constitutionalparticipated in the deliberations) any case Commissions shall appoint its own officials in accordance with law.or matter brought before it within 60 days fromthe date of its submission for decision or SECTION 6, ARTICLE IX-A. Each Commission mayresolution [Section 7, Article IX-A, 1987 promulgate its own rules concerning pleadings andConstitution]. practice before it or before any of its offices. Such rules however shall not diminish, increase, or modifyAny decision, order or ruling of each substantive rights.Commission may be brought to the SC on SECTION 8, ARTICLE IX-A. Each Commissioncertiorari 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 itsreview only to the grounds relied upon bya government agency’s auditor with respectto disallowing certain disbursem*nts of publicfunds. Such would render COA’s vitalconstitutional power unduly limited and therebyuseless and effective [Yap v. COA, G.R. No.158562 (2010)].
2. Certiorari Jurisdiction of theSupreme CourtLimited to decisions rendered in actions orproceedings taken cognizance of by theCommissions in the exercise of their quasi-judicial powers.
The Court exercises extraordinary jurisdiction,thus, the proceeding is limited only to issuesinvolving grave abuse of discretion resulting inlack or excess of jurisdiction, and does notordinarily empower the Court to review thefactual findings of the Commission [Aratuc v.COMELEC, G.R. No. L-49705-09 (1999)].
3. Synthesis on the Rules of Modes ofReview a. Decisions, order or ruling of the Commissions in the exercise of their Page 114 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW
VII. BILL OF RIGHTS (1) Political Rights Who must be natural-born? 1. President [Section 2, Article VII, 1987See 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 collegiateThe 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 monetary1. 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, 1987A person who renounces all foreign citizenship Constitution].under Section 5(2) of R.A. No. 9225 recantsthis 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 the195649 (2013)]. country and clothed with the privileges of a native-born citizen. The applicant must proveHaving the status of a natural-born citizen is that he has all of the qualifications and none ofimportant for the purpose of certain political the disqualifications for citizenship.and economic rights open only to such citizens.
Page 115 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW (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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW (9) Grounds 2. Citizens of the Philippines [SectionUpon 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 ofcanceled 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 citizenshiprevoked 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, ArticleJudgment directing the issuance of a certificate III, 1987 Constitution].of naturalization is a mere grant of a politicalprivilege and that neither estoppel nor res b. Citizens under the 1935 Constitutionjudicata may be invoked to bar the State from 1. Those who are citizens at the time ofinitiating an action for the cancellation or the adoption of this Constitution;nullification of the certificate of naturalization 2. Those born in the Philippine Islands ofthus issued [In Re: Yao MunTek v. Republic, foreign parents who, before theG.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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 to4. Citizens of the Philippines on May foundlings, there is no restrictive language14, 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 anAny 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, thepresumption that having died in 1954 at 84 marriage having been celebrated before 17years old, Lorenzo would have been born January 1973). A and B lived in the US sincesometime in the year 1870, when the then and in 1962, begot C, who wasPhilippines was under Spanish rule, and that automatically an American citizen by jus soliSan 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 placeof residence before death, such that Lorenzo Yes, according to obiters in Cu v. Republic andPoe would have benefited from the “en masse Villahermosa v. CID, in order to elect PhilippineFilipinization” that the Philippine Bill had citizenship, at least for election purposes, it iseffected in 1902 [Tecson v. COMELEC, G.R. enough that (1) the person's mother was aNo. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWperson be a child of that marriage, for him to the grant of Philippine citizenship to the minorelect Philippine citizenship. children of those naturalized thereunder.
If C wants to run for Congress, is he considered The following are requisites should be applieda natural born Filipino? Under the 1973 to the minor children in order to be entitled toConstitution, no. But under the 1987 Philippine citizenship:Constitution, yes. 1. They are legitimate children of petitionerNote: If he were born after 17 January 1973, 2. They were born in the Philippines, andthe child would not even be a Filipino. You can 3. They were still minors when theonly be a Filipino if you are born to a Filipino petitioner was naturalized as a Filipinomother 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 to1. By Birth legitimate children and not to one who wasa. Jus Soli — “Right of soil;” a person’s concededly an illegitimate child, as hernationality is based on place of birth; formerly Chinese father and Filipino mother were nevereffective in the Philippines [Roa v. Collector of married. Being an illegitimate child of a FilipinoCustoms, 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 whenperson'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 Period2. By Naturalization Under Article IV, Section 1(3) of the 1935Naturalization signifies the act of formally Constitution, the citizenship of a legitimate childadopting a foreigner into the political body of a born of a Filipino mother and an alien fathernation 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 1935Three modes by which an alien may Charter only provides that the election shouldbecome 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 the2. Judicial naturalization pursuant to C.A. Secretary of Justice on cases involving the 437; and validity of election of Philippine citizenship, this3. 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 for3. Derivative Naturalization electing Philippine citizenship, should be madeUnder this provision, foreign women who are within “reasonable time” after attaining the agemarried to Philippine citizens may be deemed of majority. This phrase “reasonable time” hasipso facto Philippine citizens and it is neither been interpreted to mean the election shouldnecessary for them to prove that they possess be made within three years from reaching theother qualifications for naturalization at the time age of majority [Re: Application for Admissionof their marriage nor do they have to submit to the Philippine Bar, Vicente D. Ching, Barthemselves to judicial naturalization [Republic Matter No. 914, October 1, 1999].v. Batuigas, G.R. No. 183110 (2013)].
Pursuant to the principle of derivativenaturalization, Section 15 of CA 437, extends Page 119 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW6. Eligibility under the Administrative C. Loss and Re-Acquisition ofNaturalization Law; Rationale Philippine CitizenshipR.A. No. 9139 is an act providing for theacquisition of Philippine citizenship for 1) aliens 1. Grounds for Loss of Philippineborn in the Philippines and 2) residing thereinsince birth by administrative naturalization Citizenshipsubject to certain requirements dictated by a. Naturalization in a foreign countrynational security and interest. R.A. No. 9139 [Section 1(1), C.A. 63];was enacted as a remedial measure intended b. Express renunciation or expatriationto make the process of acquiring Philippine [Section 1(2), CA 63];citizenship less tedious, less technical and c. Taking an oath of allegiance to anothermore encouraging. It also addresses the country upon reaching the age ofconcerns of degree holders who, by reason of majority;lack of citizenship requirement, cannot practice d. Marriage by a Filipino woman to antheir profession, thus promoting "brain drain for alien, if by the laws of her husband’sthe Philippines [So v. Republic, supra]. country, she becomes a citizen thereof. (Now qualified by Section 4, Article IV. Citizens of the Philippines who marry7. Qualifications prescribed under Act aliens shall retain their citizenship,473 NOT applicable to R.A. No. 9139 unless by their act or omission they areThe qualifications and disqualifications of an deemed, under the law, to haveapplicant 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 inthe 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/defensivedisqualifications of an applicant for pact with the country, or it maintainsnaturalization by administrative act. armed forces in RP with RP’s consent; f. Denaturalization (The court, upon itsRationale: discretion, may cancel certificate of1. 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 does2. 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 ofApplying the provisions of R.A. No. 9139 to the Philippines is at war with any countryjudicial naturalization is contrary to the intention [Section 1(3), C.A. 63].of the legislature to liberalize the naturalizationprocedure 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWPhilippine citizenship [Aznar v. COMELEC, 5. R.A. No. 9225 (CITIZENSHIPG.R. No. 83820 (1995)]. RETENTION AND REACQUISITION ACT OF 2003)4. Reacquisition Reacquisitiona. Naturalization [C.A. 63 and C.A. 473] Natural-born citizens of the Philippines whoNow an abbreviated process, no need to wait have lost their Philippine citizenship by reasonfor 3 years (1 year for declaration of intent, and of their naturalization as citizens of a foreign2 years for the judgment to become executory) country are deemed to have reacquired Philippine citizenship upon taking the oath ofRequirements: allegiance to the Republic [Section 3, R.A.1. Must be 21 years of age 9225].2. Must be a resident for 6 months3. Must have good moral character Retention4. Must have no disqualification Natural-born citizens of the Philippines who, after the effectivity of R.A. 9225, becomeb. Repatriation citizens of a foreign country shall retain theirRepatriation results in the recovery of the Philippine citizenship upon taking the aforesaidoriginal nationality. Therefore, if he is a natural- oath [Section 3, R.A. No. 9225].born citizen before he lost his citizenship, hewill be restored to his former status as a Derivative Citizenshipnatural-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-acquireMere 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 therequires 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: ThoseIn the absence of any official action or approval who retain or re-acquire Philippine citizenshipby proper authorities, a mere application for under this Act shall enjoy full civil and politicalrepatriation does not, and cannot, amount to an rights and be subject to all attendant liabilitiesautomatic reacquisition of the applicant’s and responsibilities under existing laws of thePhilippine citizenship [Labo v. COMELEC, Philippines.G.R. No. 86564 (1989)]. Conditions for enjoyment of full civil andc. Legislative Act political rightsCitizenship can be acquired by an alien thru Right Conditionlegislative naturalization in the form of a lawenacted by Congress bestowing Philippine Suffrage Meet requirements undercitizenship to an alien [So v. Republic, GR Section 1, Article V of theNo.170603 (2007)]. 1987 Constitution, R.A. No. 9189 (OverseasCitizenship can be reacquired by natural-born Absentee Voting Act ofcitizens of the Philippines who have lost their 2003), other existingPhilippine citizenship by reason of their laws.naturalization as citizens of a foreign countryupon taking the oath of allegiance to the Seeking Meet the qualificationsRepublic [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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 theirThe right to vote or be elected or appointed to Filipino citizenship even if they acquire anotherany public office in the Philippines cannot be citizenship in a foreign country. Retention orexercised by, or extended to, those who: reacquisition is accomplished by simply taking1. 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 allegiance2. 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 in6. Repatriation under R.A. No. 8171 the Philippines. Likewise, under the principle ofR.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-acquiretheir Philippine citizenship by marriage to Philippine citizenship upon the effectivity ofaliens and (b) of natural-born Filipinos who R.A. No. 9225, shall be deemed citizens of thehave lost their Philippine citizenship on account Philippines.of political or economic necessity, includingtheir minor children [Angat v. Republic, GR No. 8. R.A. No. 9225 is NOT violative of132244 (1999)]. Included in the second group Section 5 of Article IV of theare minor children at the time of repatriationand does not include one who is no longer Constitution prohibiting dualminor at the time of his repatriation or one who allegiancelost his Philippine citizenship by operation of Section 5 of Article IV of the Constitution is alaw. 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 toand not by operation of law such as derivative enact the law on dual allegiance. In Sections 2naturalization, or for the purpose of avoiding and 3 of R.A. No. 9225, the framers were notdeportation and prosecution in the US [Tabasa concerned with dual citizenship, per se, butv. CA, G.R. No. 125793 (2006)]. with the status of naturalized citizens who
Page 122 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWmaintain their allegiance to their countries of application of different laws of two or moreorigin even after their naturalization. Congress states to a dual citizen.was given a mandate to draft a law that wouldset specific parameters as to what really 2. Dual Allegianceconstitutes dual allegiance. Until this is done, it a. Aliens who are naturalized as Filipinos butwould 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 theallegiance [Calilung v. Datumanong, GR government, seek citizenship in another160869 (2007)]. country.
9. Citizenship Reacquired by 3. Dual citizenship vs. dual allegianceRepatriation under Repatriation Laws Dual citizenship arises when, as a result of theRepatriation results in the recovery of the concurrent application of the different laws oforiginal nationality. This means that a two or more states, a person is simultaneouslynaturalized Filipino who lost his citizenship will considered a national by the said states. Forbe restored to his prior status as a naturalized instance, such a situation may arise when aFilipino citizen. On the other hand, if he was person whose parents are citizens of a stateoriginally a natural-born citizen before he lost which adheres to the principle of jus sanguinishis Philippine citizenship, he will be restored to is born in a state which follows the doctrine ofhis 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 aout as the occasion demands. Res judicata situation in which a person simultaneouslyonly applies once a finding of citizenship is owes, by some positive acts, loyalty to two oraffirmed 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’sis a party; (b) the person's citizenship is raised volition [Mercado v. Manzano, 307 SCRA 630as a material issue; and (c) the Solicitor (1999)].General or an authorized representative is ableto take an active part. “Dual citizens” are disqualified from running for any elective local position [Section 40(d), LocalWhen a person has already been declared Government Code]; this should be read asand recognized as a Philippine Citizen, by the referring to “dual allegiance.BI and the DOJ, he must be protected fromsummary deportation proceedings. A citizen is Once a candidate files his candidacy, he isentitled to live in peace, without molestation deemed to have renounced his foreignfrom any official or authority, and if he is citizenship in case of dual citizenship [Mercadodisturbed by a deportation proceeding, he has v. Manzano, G.R. No. 135083 (1999)].the unquestionable right to resort to the courtsfor his protection, either by a writ of habeas Clearly, in including Section 5 in Article IV oncorpus or of prohibition on the ground that the citizenship, the concern of the ConstitutionalBI lacks jurisdiction [Republic v. Harp, G.R. Commission was not with dual citizens per seNo. 188829 (2016)]. but with naturalized citizens who maintain their allegiance to their countries of origin even afterD. 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 CitizenshipAllows a person who acquires foreign Consequently, persons with mere dualcitizenship to simultaneously enjoy the rights citizenship do not fall under thishe previously held as a Filipino citizen. This is disqualification. For candidates with dualcompletely voluntary, and results in the citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Page 123 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWPhilippine citizenship to terminate their statusas persons with dual citizenship consideringthat their condition is the unavoidableconsequence of conflicting laws of differentStates.
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IX. NATIONAL ECONOMY lands [Section [Section 3, 4(2), Article AND PATRIMONY Article XII] XIV]
(1) Citizens CongressA. 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, InvestmentB. Regalian Doctrine save in as CongressSECTION 2, ARTICLE XII. All lands of the public cases maydomain, waters, minerals, coal, petroleum, and provided by prescribeother mineral oils, all forces of potential energy, law (Congressfisheries, forests or timber, wildlife, flora and fauna, [Section mayand other natural resources are owned by theState. With the exception of agricultural lands, all 14(2), Article prescribe aother 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 beUse and Coproductio Engagement [Section for longerenjoyment of n, in 2(3), Article period thanmarine Joint advertising XII] 50 yearswealth, venture, and industry Executiveexclusive to Production [Section 11, andFilipino sharing Article managingcitizens agreements XVI] officers must[Section 2, over natural be Filipinopar. 2, resourcesArticle 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 andRules on Educational effective onagricultural Institutions April 9, 2022. Page 125 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW (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 thatprivate 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 periodnot exceeding 25 years, renewable for not The right to the dividends, jus fruendi - a rightmore than 25 years, and not to exceed 1000 emanating from ownership of that "specificha. in area [Section 3, Article XII, 1987 stock" necessarily accrues to its FilipinoConstitution]. "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 grantA 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% Filipinoforeign capitalization requirement [JG Summit The State shall regulate and exercise authority overHoldings v. CA, G.R. No. 124293 (2000)]. foreign investments within its national jurisdiction and in accordance with its national goals andWhat “capital” is covered – The 60% prioritiesrequirement applies to both the voting controland the beneficial ownership of the public Such provision is per se enforceable andutility. Therefore, it shall apply uniformly, requires no further guidelines or implementingseparately, and across the board to all classes rules or laws for its operation [Manila Princeof shares, regardless of nomenclature or Hotel v. GSIS, G.R. No. 122156 (1997)].category, comprising the capital of thecorporation (e.g., 60% of common stock, 60% The Constitution does not impose a policy ofof preferred voting stock, and 60% of preferred Filipino monopoly of the economicnon-voting stock) [Gamboa v. Teves, G.R. No. environment. It does not rule out the entry of176579 (2012)]. foreign investments, goods, and services. While it does not encourage their unlimited2. Two Tests to Determine Whether or entry into the country, it does not prohibit themNot Nationality Requirement Was Met either.
In fact, it allows an exchange on the basis ofa. Control Test equality and reciprocity, frowning only onFilipinos 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 shallthere 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, andsubject to the Grandfather Test. adopt measures that help make them competitive.
b. Grandfather Test 4. R.A. No. 11659Where percentage of Filipino equity in a R.A. No. 11659 amended the 86-year-oldcorporation is computed by attributing the Public Service Act (C.A. No. 146).nationality of the second or even subsequenttier of ownership to determine the nationality ofthe corporate shareholder [Narra Nickel MiningDev’t Corp. v. Redmont Consolidated MinesCorp., 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWa. Public Utility Definition [Section 3. Information security clauses ensure that13(d), C.A. No. 146, as amended by R.A. entities engaged in theNo. 11659] telecommunications business meetPublic utility refers to a public service that relevant ISO standards;operates, manages, or controls, for public use, 4. The reciprocity clause prevents foreignany of the following: nationals from owning more than 50% of1. Distribution of Electricity; capital in the operation and management of2. Transmission of Electricity; critical infrastructure unless the foreign3. Petroleum and Petroleum Products nationals’ home countries accord Pipeline Transmission Systems; reciprocity to Philippine nationals; and4. 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 the5. Seaports; and public, and the ability of the public service6. Public Utility Vehicles. provider to immediately and adequately respond to emergency cases.All concessionaires, joint ventures, and similarentities that wholly operate, manage, or control, C. Exploration, Development,for public use, the sectors above are public and Utilization of Naturalutilities. ResourcesThe 60-40 restriction is now limited to entitiesclassified 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 andThese key sectors are considered natural responsibility in the exploration, developmentmonopolies where a single firm can effectively and utilization thereof.serve the market at a lower cost than two ormore firms. As such it may undertake these activities through four modes:b. Foreign-Ownership of Public a. Directly. The State may directly undertakeServices such activitiesKey industries such as telecommunications, b. Co-Production/JV/Production-Sharing.expressways, airports, and shipping have been The State may enter co-production, jointremoved from the category of public utility. venture or production-sharing agreementsUnder the new law, these industries may now with Filipino citizens or qualifiedbe 100% foreign-owned. corporations c. By Law. Congress may, by law, allowc. Safeguards small-scale utilization of natural resourcesWhile the newly amended law may attract by Filipino citizens; orcritically-needed investment, some may d. Presidential Agreements. For the large-consider the law’s liberality as going against scale exploration, development andthe conservation of national patrimony. utilization of minerals, petroleum and otherTherefore, to ensure a Filipino-controlled mineral oils, the President may enter intonational economy, below are 5 safeguards: agreements with foreign-owned1. 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 into2. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 the2. FTAA vs. Service Contract productive FTAA (1987 Service enterprise, Constitution Contract operations of ) (1973 the Constitution exploration ) and exploitationParties 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 AssistanceActivities scale provides Agreements (FTAA): even supposing they exploration, all necessary are service contracts, these are not Page 128 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW prohibited agreements in the c. Shall NOT be for a period of more than 50 contemplation of the Constitution yearsb. Philippine Mining Law (R.A. No. 7942) d. Shall be subject to amendment, alterationc. 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 theThe Constitution should be construed to grant operation of a public utility is a prerogative ofthe President and Congress sufficient the legislature. The franchise is a legislativediscretion and reasonable leeway to enable grant, whether made by the legislature itself, orthem to attract foreign investments and by any one of its properly constitutedexpertise, as well as to secure for our people instrumentalities [Aquino].and our posterity the blessings of prosperityand peace. Administrative bodies (i.e. LTFRB, Energy Regulatory Board) may be empowered by lawIt 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, thehumongous amounts of capital and financing What constitutes a public utility is not therequired for large-scale mining operations, the ownership but the use to the public. Thecomplicated technology needed, and the Constitution requires a franchise for theintricacies of international trade, coupled with operation of public utilities.the State’s need to maintain flexibility in itsdealings, to preserve and enhance our However, it does not require a franchise beforecountry’s competitiveness in world markets [La one can own the facilities needed to operate aBugal-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 Constitutiona. 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, franchiseb. The president shall be the signatory for the is required. governmentc. 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 CPCauthorization for the operation of a public utilityshall be granted except to: It is a grant or It is a form of1. Citizens of the Philippines; or privilege from regulation through2. Corporations or associations organized sovereign power administrativeunder the laws of the Philippines at least sixty agenciesper centum of whose capital is owned by suchcitizens [Section 11, Article XII, 1987Constitution]. Authority and Certificates for Public UtilitiesFranchise No public service as herein defined shallNature of a Franchise: operate in the Philippines without having firsta. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWConvenience (CPC) or as Certificate of Public To prove that the land subject of an applicationConvenience and Necessity (CPCN) [Section for registration is alienable, an applicant must15, Public Service Act]. conclusively establish the existence of a positive act of the government such as aRequisites for issuance of CPC presidential proclamation or an executive order1. 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 constitutedand organized under the laws of the Foreshore land is that part of the land which isPhilippines, 60 per centum at least of the stock between the high and low water, and left dry byor paid-up capital of which belong entirely to the flux and reflux of the tides. It is part of thecitizens of the Philippines; alienable land of the public domain and may be2. The applicant must prove that the operation disposed of only by lease and not otherwiseof the public service proposed and the [Republic v. Imperial, supra].authorization to do business will promote thepublic interest in a proper and suitable manner; Citizens of the Philippines may lease not more3. The applicant must be financially capable of than 500 ha. or acquire not more than 12undertaking the proposed service and meeting hectares thereof by purchase, homestead, orthe 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 befranchise or a CPC. The paramount transferred or conveyed except to individuals,consideration should always be the public corporations, or associations qualified tointerest and public convenience [Vda. De Lat v. acquire or hold lands of the public domainPublic 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 a1. Lands of Public Domain transferee of private lands, subject to limitations provided by law [Section 8, ArticleLands of the Public Domain are classified XII, 1987 Constitution].into:1. Agricultural Lands The primary purpose of the constitutional2. Forest or Timber Lands prohibition disqualifying aliens from acquiring3. Mineral Lands lands of the public domain and private lands is4. National Park [Section 3, Article XII, 1987 the conservation of the national economy andConstitution] patrimony [Muller v. Muller, G.R. 149615 (2006)].Note: The classification of public lands is afunction of the executive branch, specifically Consequence of sale to non-citizensthe 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, isconclusive upon the courts [Republic v. When a disqualified foreigner later sells it to aImperial, G.R. No. 130906 (1999)]. qualified owner (e.g. Filipino citizen), the defect is cured. The qualified buyer owns the landAlienable lands of the public domain shall be [Godinez v. Pak Luen, G.R. No L-36731limited to agricultural lands [Section 3, Article (1983)].XII, 1987 Constitution].
Page 130 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWCan a former owner file an action to recover professions or trades, even to the point ofthe 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 anexception to the application of the principle of The Philippines allows Japanese nationals toin pari delicto. Thus, the action will lie. practice the medical profession, provided he has taken and passed the medical boardHowever, land sold to an alien which was later examination and upon submission of a proof oftransferred to a Filipino citizen OR when the reciprocity between Japan and the Philippinesalien later becomes a Filipino citizen can no in admitting foreigners into the practice oflonger be recovered by the vendor, because medicine. It is enough that the laws in thethere 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 occupationForeigners are allowed to own condominium cannot be exercised by the State or its agentsunits and shares in condominium corporations in an arbitrary, despotic or oppressive mannerup to not more than 40% of the total and [Board of Medicine v. Ota, G.R. No. 166097outstanding capital stock of a Filipino-owned or (2008)].controlled corporation. Under this set up, theownership of the land is legally separated from G. Organization and Regulationthe unit itself. of Corporations, Private andThe land is owned by a Condominium PublicCorporation and the unit owner is simply a SECTION 6, ARTICLE XII. The use of propertymember in this Condominium Corporation. bears a social function, and all economic agentsProvided 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 operatePR Builders, G.R. No. 156364 (2008)]. economic enterprises, subject to the duty of the State to promote distributive justice and to interveneIn 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 theAgreement of Lease of a parcel of land a interest of national welfare or defense, establish andFilipino wife entered, without the consent of her operate vital industries and, upon payment of justBritish husband. Being an alien, the husband is compensation, transfer to public ownership utilitiesabsolutely prohibited from acquiring private and other private enterprises to be operated by theand public lands in the Philippines even if he Government.claims that he provided funds for suchacquisition H. Monopolies, Restraint of Trade and Unfair CompetitionF. 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 themedicine is not a right, but a privilege burdened operation of monopolies. It mandates the Statewith conditions as it directly involves the very to regulate them when public interest solives of the people. A fortiori, this power requires [Eastern Assurance & Suretyincludes the power of Congress to prescribe Corporation v. LTFRB, G.R. No. 149717the qualifications for the practice of professions (2003)].or trades which affect the public welfare, thepublic health, the public morals, and the public Monopolies are not per se prohibited by thesafety; and to regulate or control such Constitution. Instead, they may be permitted to Page 131 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWexist to aid the government in carrying on anenterprise or to aid in the performance ofvarious services and functions in the interest ofthe public.
Nonetheless, a determination must first bemade as to whether public interest requires amonopoly [Agan, Jr. v. PIATCO, G.R. No.155001 (2003)].
Even though the present Constitutionenshrines free enterprise as a policy,nonetheless, the Government reserves thepower to intervene to promote the generalwelfare.
Free enterprise does not call for removal ofprotective regulations. It must be clearlyexplained and proven by competent evidencejust exactly how such protective regulationwould result in the restraint of trade [PestManagement Association of the Philippines v.Fertilizer and Pesticide Authority cited inPharmaceutical and Health Care Associationof the Philippines v. Duque, G.R. 173034(2007)].
Page 132 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW SECTION 3, ARTICLE XIII. The State shall affordX. 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 ofSocial 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 towelfare of all the people, the adoption by the investments, and to expansion and growth.Government of measures calculated to insureeconomic stability of all the competentelements of society, through the maintenance 2. Agrarian and Natural Resourcesof a proper economic and social equilibrium in Reformsthe interrelations of the members of the SECTION 4, ARTICLE XIII. The State shall, by law, undertake an agrarian reform program founded oncommunity, constitutionally, through the the right of farmers and regular farmworkers whoadoption of measures legally justifiable, or are landless, to own directly or collectively the landsextra constitutionally, through the exercise of they till or, in the case of other farmworkers, topowers 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 justsalus populi est suprema lex. distribution of all agricultural lands, subject to such priorities and reasonable retention limits as the Congress may prescribe, taking into accountIt 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. Inand diverse units of a society and of the determining retention limits, the State shall respectprotection that should be equally and evenly the right of small landowners. The State shall furtherextended 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 shallthe fundamental and paramount objective of recognize the right of farmers, farmworkers, andthe state of promoting the health, comfort, and landowners, as well as cooperatives, and otherquiet of all persons, and of bringing about "the independent farmers’ organizations to participate ingreatest 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 otherB. Economic, Social, and support services. Cultural Rights SECTION 7, ARTICLE XIII. The State shall protect the rights of subsistence fishermen, especially of1. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 of3. 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 controlThe constitutional requirement (under Section procedures; and10, Article XIII) that the eviction and demolition h. Adequate relocation, whether temporary orbe in accordance with law and conducted in a permanent: Provided, however, That injust and humane manner does not mean that cases of eviction and demolition pursuantthe validity or legality of the demolition or to a court order involving underprivilegedeviction is hinged on the existence of a and homeless citizens, relocation shall beresettlement area designated or earmarked by undertaken by the local government unitthe government. What is meant by "in concerned and the National Housingaccordance with law" and "just and humane Authority with the assistance of othermanner" 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 finalcontrovert the allegation that his or her judgment by the court, after which periodoccupation 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 belandowner; that should the illegal or unlawful possible within the said period, financialoccupation be proven, the occupant be assistance in the amount equivalent to thesufficiently notified before actual eviction or prevailing minimum daily wage multiplieddemolition is done; and that there be no loss of by sixty (60) days shall be extended to thelives, physical injuries or unnecessary loss of affected families by the local governmentor damage to properties. Precisely, the unit concerned [Kalipunan ng Damayangenactment of an anti-squatting law affords the Mahihirap v. Robredo, G.R. No. 200903alleged "squatters" the opportunity to present (2014)].their case before a competent court where theirrights will be amply protected and due processstrictly observed [People v. Leachon, G.R. Nos. 4. Health SECTION 9, ARTICLE XIII. The State shall adopt108725-26 (1998)]. an integrated and comprehensive approach to health development which shall endeavor to makeTo ensure that evictions and demolitions are essential goods, health and other social servicesconducted in a just and human manner, available to all the people at affordable cost. ThereSection 28, Para. 2 of R.A. No. 7279 shall be priority for the needs of the underprivileged, sick, elderly, disabled, women, and children. Thecommands officials to comply with the Page 134 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 ofIn 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. Itwith their maternity leaves and were shall consider these rights in the formulation ofsubsequently terminated by Saudia due to their national plans and policies.pregnancy. C. Commission on HumanThe Court ruled that Saudia's policy is Rightsdiscriminatory. There is the glaringlydiscriminatory 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 officeattendants who become pregnant. At the risk of called the Commission on Human Rights.stating the obvious, pregnancy is anoccurrence 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 andSaudia's policy excludes from and restricts powers.employment based on no other considerationbut sex. It would be the height of iniquity to view 1. Powerspregnancy as a disability so permanent and a. Investigate, on its own or on complaint byimmutable that it must entail the termination of any party, all forms of human rightsone'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 for6. Role and Rights of Peoples violations thereof in accordance with theOrganizations 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 to7. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAWh. 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; andk. Perform such other duties and functions as may be provided by law [Section 18, Article XIII, 1987 Constitution].
The Constitution clearly and categoricallygrants to the Commission the power toinvestigate all forms of human rights violationsinvolving civil and political rights. But it cannottry and decide cases (or hear and determinecauses) 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 aquasi-judicial body. The Commission cannottry and resolve cases on merits as it is notwithin its power to investigate. Its power toinvestigate is only fact-finding. When providingpreventive measures, it can file a case beforea court to represent victims [EPZA v. CHR,G.R. No. 101476 (1992)].
2. Composition and Qualification ofMembers 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.
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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 theA. Definitions registered voters therein i. Limitation on Initiative: No1. Amendments amendment in this mannerAn addition or change within the lines of the shall be authorized (1) within 5original constitution as will effect an years following the ratificationimprovement, or better carry out the purpose of the 1987 Const. nor (2) morefor which it was framed; a change that adds, often than once every 5 yearsreduces or deletes without altering the basic thereafter.principles involved; affects only the specific ii. Enabling Law: Constitutionalprovision being amended [Lambino v. provision on amendments viaCOMELEC, supra]. People’s Initiative are not self- executory [Defensor- Santiago v. COMELEC, 270 SCRA 170 (1997)]
Page 137 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW2. RatificationThe Proposed Amendments shall be submittedto the people and shall be deemed ratified bythe majority of the votes cast in a plebiscite,held not earlier than 60 days nor later than 90days: 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 SubmissionA plebiscite may be held on the same day as aregular election [Gonzales v. COMELEC, G.R.No. L-28196 (1967)]. The entire Constitutionmust be submitted for ratification at oneplebiscite only. The people must have a proper“frame of reference” [J. Barredo’s Dissent inTolentino v. COMELEC, G.R. No. L-34150(1971)].
No “piecemeal submission” is allowed; e.g.submission of age amendment ahead of otherproposed amendments [Lambino v.COMELEC, supra].
Note: The process of revision is the same in allrespects except that it cannot be proposed viaa People’s Initiative [Lambino v. COMELEC,supra].
4. Judicial Review of AmendmentsThe validity of the process of amendment isnot a political question because the Courtmust review if constitutional processes werefollowed [Lambino v. COMELEC, supra].
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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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW I POLITICAL LAW 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 amendmentsVito (Congressional Parity Amendment was assailed on to the Constitution is a politicalResolution the grounds that it did not comply with question. The enrolled copy of theproposing the the ¾ rule prescribed by the resolution in which it was certified thatParity Amendment) Constitution the proposal had been approved byNote: Expressly the required vote was conclusive uponoverturned in the CourtsGonzales v.COMELEC
Gonzales v. RBH No. 1 called for an increase in DENIED; (1) Proposal of amendmentsCOMELEC membership of the HOR; RBH No 2 is not a political question and it isResolutions of both called for a Constitutional Convention subject to judicial review. (2) CongressHouses calling for RBH No. 3 called for the amendment may propose amendments and at thethe 1971 of Section 16, Article VI to allow same time call for a ConstituentConstitutional members of the Congress to be Assembly. (3) Ratification may beConvention and delegates to the ConCon without done simultaneously with a generalamendments to the losing their seats. Petitioners sought election or in a special election called1935 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 proposedCOMELEC ( 1973 (submitting, for ratification the by the ConCon shall be submitted toConstitutional proposal to lower the voting age to the people in a single election.Convention 18) was assailed. Issue: W/Nconvened) 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 whetherExecutive implementation of any of the Constitution was validly ratified is aSecretary 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 toCOMELEC (1976 the President in issuing several PDs proposal and ratification isAmendments) 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
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Title Facts Holding/Ratio
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 newAquino 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 1987Esguerra (1987 of respondents as barangay officials Constitution retroacts to the date of theConstitution 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 permanentlyv. COMELEC from acting on the petition enjoined from entertaining or takingCOMELEC (PIRMA by the PIRMA group asking for an cognizance of any petition for initiativecase) 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
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Title Facts Holding/Ratio
assembly, and to petition the government for redress
Lambino v. Petitioners seek review of The constituent power reserved toCOMELEC (Labino COMELEC decision denying due people under Article XVII Section 2 isGroup People’s course to a people’s initiative to limited to the power to proposeInitiative) 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.
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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, andA. 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 Constitutionguarantees all institutions of higher A simple reading of the Constitution wouldlearning academic freedom. show that Article XIV, Section 4 (3) does notThis institutional academic freedom includes require that the revenues and income mustthe right of the school or college to decide for have also been earned from educationalitself, its aims, and objectives, and how best to activities or activities related to the purposes ofattain them free from outside coercion or an educational institution. The phrase "allinterference save possibly when the overriding revenues" is unqualified by any reference topublic welfare calls for some restraint. Indeed, the source of revenues. Thus, so long as thethe Constitution allows merely the State's revenues and income are used actually,regulation and supervision of educational directly and exclusively for educationalinstitutions, and not the deprivation of their purposes, then said revenues and income shallrights [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 freedomto determine for itself on academic grounds:1. Who may teach2. What may be taught3. How it shall be taught, and4. Who may be admitted to study [Pena v. NLRC, G.R. No. 100629 (1996)]
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I. BILL OF RIGHTS decision made by decision of the the State. corporation or company, if theA. 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 thegovernmental action should conform in order Due process extends to aliens and, suchthat deprivation of life, liberty or property, in guarantee includes the means of livelihoodeach appropriate case, be valid [Ermita-Malate [Villegas v. Hiu Chiong, G.R. No. L-29646Hotel 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 substantivearbitrariness on the part of the government, Substantive Due Procedural Duewhether committed by the legislature, the Process Processexecutive or the judiciary [Cruz]. NatureThe test or standard, as always, is reason. Thepolice power legislation must be firmlygrounded on public interest and welfare, and a Requires that the Refers to thereasonable relation must exist between law must be fair, method or mannerpurposes and means [Ichong v. Hernandez, reasonable, and just. by which a law issupra]. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWpower [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 itsSubstantive due process inquires whether the contents. For the publication requirement,government has sufficient justification for “laws” refer to all statutes, including those ofdepriving 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 publicNo. 122846 (2009)]. nature” or “of general applicability is mandated by law [Tañada v. Tuvera, G.R. No. L-63915Requisites 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 Process4. 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 governmentSubstantive due process requires that the action adhering to the established processmeans employed in depriving persons of when it makes an intrusion into the privateproperty must not be unduly oppressive [SJS v. sphere [White Light Corporation v. City ofAtienza Jr., G.R. No. 156051 (2007)]. Manila, supra].
Expanded test of substantive due Procedural due process is that aspect of dueprocess process which serves as a restriction on1. Is there public interest, public purpose, actions of judicial and quasi-judicial agencies of public welfare involved? the government. It refers to the method of2. 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 of3. 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 urgency5. 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 theseLawful subject requisites, (e.g. summary abatement of aThe 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 therequire the intervention of the State, and immediate danger it poses to the safety and lives of the people.Lawful meansThe means employed are reasonably 2. Void-for-Vaguenessnecessary for the accomplishment of thepurpose and not unduly oppressive on Void-for-Vagueness Doctrineindividuals. An act is vague when it lacks comprehensible standards that men of common intelligence Page 146 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWmust necessarily guess at its common meaning it, fair notice of whatand differ as to its application. A statute or act conduct to avoidmay be said to be vague when it lacks [Southerncomprehensible 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 lawsspecies of legislation that is utterly vague on its due process invade protectedface, i.e., that which cannot be clarified either freedoms.by a saving clause or by construction. The testin determining whether a criminal statute is voidfor uncertainty is whether the language Both the void for vagueness doctrine and theconveys a sufficiently definite warning as to the overbreadth doctrine are subject to the sameproscribed conduct. It must be stressed, principles. For one, it is also an analytical toolhowever, that the vagueness doctrine merely for a “facial” challenge of statutes in freerequires a reasonable degree of certainty for speech cases. Like overbreadth, it is said thatthe statute to be upheld – not absolute a litigant may challenge a statute on its faceprecision or mathematical exactitude [Estrada only if it is vague in all its possible applications.v. Sandiganbayan, G.R. No. 148560 (2001)]. Facial invalidity testOverbreadth Doctrine Whether the language conveys a sufficientlyThe overbreadth doctrine decrees that “a definite warning as to the proscribed conductgovernmental purpose may not be achieved by when measured by common understandingmeans which sweep unnecessarily broadly and and practice [Estrada v. Sandiganbayan,thereby invade the area of protected freedoms” supra].[Southern Hemisphere v. Anti-TerrorismCouncil, G.R. No. 178552 (2010)]. Applicability to Penal Statutes
Facial challenge is allowed because of the General Rule: Void for vagueness andpossible 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW3. 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 competentproceedings [Banco Español v. Palanca, G.R. jurisdiction;No. L-11390 (1918)]: 2. Accused is proceeded against under the1. 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 evidence3. The defendant must be given an in support thereof. opportunity to be heard; and 2. Not only must the party be given an4. Judgment must be rendered upon lawful opportunity to present his case and to hearing. adduce evidence tending to establish the5. 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 mindNote: The SC reiterated that the right to appeal might accept as adequate to support ais 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 theIn 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 meetCriminal 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 ownfollowed to assure that the State makes no independent consideration of the law andmistake in taking the life or liberty except that facts of the controversy, and not simplyof the guilty. All the necessary measures must accept the views of a subordinate inbe 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 suchfrom the inception of custodial investigation manner that the parties to the proceeding
Page 148 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW can know the various issues involved, and the reasons for the decisions rendered.
Note: The constitutional requirement that thejudgment be in writing and promulgated is NOTAPPLICABLE to administrative decisions.
Ang Tibay is used as a basis for stating thatquasi-judicial tribunals should render itsdecision in such a manner that parties to theproceeding know the various issues involvedand 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 areasonable mind might accept as adequate tojustify a conclusion [Section 6, Rule 133, Rulesof Court].
Essence of Due Process in AdministrativeProceedings: Opportunity to be heard.
The essence of due process in anadministrative proceeding is the opportunity toexplain one’s side, whether written or verbal.This presupposes that one has been previouslyapprised of the accusation against him or her[Anonymous v. Radam, AM P-07-2333 (2007)].
As a general rule, notice and hearing are notessential to the validity of administrative actionwhere the administrative body acts in theexercise of execution, administrative, orlegislative functions; but where a publicadministrative body acts in a judicial or quasi-judicial matter, and its acts are particular andimmediate rather than general andprospective, the person whose rights orproperty may be affected by the action isentitled to notice and hearing [PhilippineCommunications Satellite v. Alcuaz, G.R. No.84818 (1989)].
Administrative issuances which implement orenforce existing laws pursuant to a validdelegation of legislative power must bepublished to be effective [Republic v. PilipinasShell, G.R. No. 173918 (2008)].
Page 149 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW
Labor Cases Academic Disciplinary Proceedings
Twin requirements which constitute the essential 1. The students must be informed inelements 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 theNotice assistance of counsel, if desired;The employer must furnish the employee with 3. They shall be informed of the evidencetwo written notices before the termination of against them;employment can be effected: 4. They shall have the right to adduceThe 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 considereddismissal is sought; and by the investigating committee or officialThe second informs the employee of the designated by the school authorities toemployer's decision to dismiss him. hear and decide the case [Non v. Dames, G.R. No. 89317 (1990)]HearingDue 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 therendered. investigation or hearing. The required proof in a student disciplinary action is substantialThis “procedural due process” requirement is not evidence. What is crucial is that official actionconstitutional but merely statutory, hence, a must meet minimum standards of fairness to theviolation of such requirement does not render the individual, which generally encompass the rightdismissal void. the employer must be sanctioned of adequate notice and a meaningful opportunityfor 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWB. Equal Protection 2. Tests to Determine the Reasonableness of aConcept Classification [Serrano v. GallantAll persons or things similarly situated must be Maritime, supra]similarly treated both as to rights conferred andresponsibilities imposed [Ichong v. Hernandez, a. Rational Basis Testsupra]. The classification should bear a reasonable relation to the government’s purpose orThe equal protection clause is directed legitimate state interest.principally against undue favor and individualor class privilege. It does not require absolute b. Intermediate Scrutiny Testequality, but merely that all persons be treated Under the Intermediate Scrutiny Test, thealike under like conditions both as to privileges government must show that the challengedconferred and liabilities imposed. One class classification serves “important governmentalmay be treated differently from another where objectives and must be substantially related tothe groupings are based on reasonable and the achievement of those objectives” [Centralreal 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 notNatural and juridical persons. However, the suspect classes (e.g. sex, illegitimacy); certainequal protection clause extends to artificial important but not fundamental interests.persons only insofar as their property isconcerned. c. Strict Scrutiny Test Applies to legislative classifications which1. Requisites for valid classification impermissibly interfere with the exercise of aa. It must rest on substantial distinctions fundamental right, or operates to the peculiar which must make for real differences; disadvantage of a suspect class. Suchb. It must be germane to the purpose of the classifications are presumed unconstitutional, law; and the government has the burden to provec. It must not be limited to existing conditions that the classification is necessary to achieve a only; compelling state interest, and that it is thed. 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 involvingAll 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 rightsG.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 operatesdisadvantage 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 distinctiongovernment to prove that the classification is based on economic class and status, with thenecessary to achieve a compelling state higher grades as recipients of a benefitinterest 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 higherMaritime, 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWConsidering that majority, if not all, the rank- jurisdiction are public officials who, throughand-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 themespecially in terms of job marketability, it is [Almonte v. Vasquez, G.R. No. 95367 (1995)].they—and not the officers—who have the realeconomic 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 unreasonableof an ordinance which imposed a curfew upon searches and seizures is a personal rightminors in Quezon City. In evaluating the invocable only by those whose rights haveordinance, the Court resorted to the strict been infringed or threatened to be infringed.scrutiny test and ruled that under our legalsystem’s own recognition of a minor’s inherent What constitutes a reasonable orlack of full rational capacity, and balancing the unreasonable search and seizure in anysame 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 thecrime, it finds that the curfew imposed is circ*mstances involved [Valmonte v. Generalreasonably justified with its narrowly drawn De Villa, G.R. No. 83988 (1989)].exceptions and hence, not constitutionallyinfirm [SPARK v. Quezon City, G.R. No. 1. Requisites of a Valid Warrant225442 (2017)]. a. Existence of Probable Cause b. Probable cause must be personallySuspect Classes determined by the JudgeRefers to classification that violates a c. After personal examination under oath orfundamental right, or prejudices a person affirmation of the complainant and theaccorded special protection by the Constitution witnesses he may produce[Serrano v. Gallant, supra]. Suspect classes d. On the basis of their personal knowledge ofmay therefore include an income-based the facts they are testifying toclassification. e. There must be particularity in the description of the places to searched andExamples of Valid Classification the persons or things to be seized f. The warrant must refer to one specific1. Filipino Female Domestics Working offense (Requisite added by jurisprudence)AbroadThey are a class by themselves because of the a. Existence of probable causespecial risks to which their class was exposed[Phil. Association of Service Exporters v. Probable Cause for Search WarrantDrilon, G.R. No. 81958 (1988)]. Such facts and circ*mstances which would lead a reasonably discreet and prudent man to2. Land-Based v. Sea-Based Filipino believe that an offense has been committedOverseas Workers AND the objects sought in connection with theThere is dissimilarity as to work environment, offense are in the place sought to be searchedsafety, danger to life and limb, and accessibility [Burgos v. Chief of Staff, G.R. No. L-64261to 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 circ*mstances which would3. Office of the Ombudsman lead a reasonably discreet and prudent man toAllowing the Ombudsman to start an believe that the person to be arrested isinvestigation 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 fromother investigatory and prosecutory agenciesof government because those subject to its Page 152 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWb. Probable Cause Must be Personally ● The thing is not required of a very technicalDetermined by the Judge description [Alvarez v. CFI, supra]The judge must make an exhaustive and The search warrant issued to searchprobing examination of witnesses and the petitioner’s compound for unlicensed firearmsapplicant, and not merely routine or pro forma was held invalid for failing to describe the placeexamination [Nala v. Barroso, Jr., G.R. No. with particularity, considering that the153087 (2003)]. compound was made up of 200 buildings, 15The determination of probable cause calls for plants, 84 staff houses, one airstrip etc. spreadan 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 tothe contrary. The description of the property to be seized need not be technically accurate or precise. ItsThe examining magistrate must not simply nature will vary according to whether therehash 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 onlyjustification of the application [Roan v. insofar as the circ*mstances 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 Personsthat the Judge may be able to properly An error in the name of the person in the searchdetermine the existence or non-existence of warrant does not invalidate the warrant, as longthe probable cause, to hold liable for perjury the as it contains a description personae (includingperson giving it if it will be found later that his additional descriptions) that will enable thedeclarations are false [Mata v. Bayona, G.R. officer to identify the accused without difficultyNo. 50720 (1984)]. [Nala v. Barroso, Jr., supra].
c. After Personal Examination under A John Doe search warrant is valid. There isOath or Affirmation of the Complainant nothing to prevent issue and service of warrantand 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 Oneknowledge of the facts they are Specific Offense.testifying to [Nala v. Barroso, Jr., However, the rule is not violated if the offensessupra]. are closely related or under the same category.The testimony must be based on the ownpersonal 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 violationfrom a “reliable source” [Alvarez v. CFI, G.R. of the Dangerous Drugs Act, the defenseNo. L-45358 (1937)]. theorized that 3 separate search warrants should have been issued instead of one (thee. There Must be Particularity in the first for illegal possession of shabu, the secondDescription of the Places to be for the illegal possession of marijuana and theSearched and the Persons or Things to third for illegal possession of paraphernalia).be Seized The Court ruled that the Dangerous Drugs ActGeneral Rule: The warrant must indicate the of 1972 is a special law that deals specificallyparticular place to be searched and person or with dangerous drugs which are subsumed intothing to be seized. "prohibited" and "regulated" drugs and defines and penalizes categories of offenses which areException: If the nature of the goods to be closely related or which belong to the sameseized 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWWhat may be Searched Effect of a Void Arrest WarrantA search warrant may be issued for the search A void arrest warrant would render the arrestand 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. 102140The officers of the law are to seize only those (1994)].things particularly described in the searchwarrant. A search warrant is not a sweeping 2. Warrantless Arrests and Detentionauthority empowering a raiding party toundertake a fishing expedition to seize and Valid Warrantless Arrests [Section 5, Ruleconfiscate any and all kinds of evidence or 113, Rules on Criminal Procedure]articles relating to a crime. The search is limitedin scope so as not to be general or explanatory. a. In Flagrante Delicto When in his presence, the person to beNothing 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. The163858 (2005)]. person must be arrested after the offense has been committed and in the presence of a policeIt is not necessary that the property to be officer [People v. Mengote, G.R. No. 87059searched or seized should be owned by the (1992)].person against whom the warrant is issued; itis sufficient that the property is within his Since rebellion is a continuing offense, a rebelcontrol or possession [Burgos v. Chief of Staff, may be arrested without a warrant at any timesupra]. 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 WarrantIt is a void warrant [Nolasco v. Paño, G.R. No. Buy-bust; When not properL-69803 (1985)]. A buy-bust operation is a valid in flagrante arrest. The subsequent search of the personAny evidence obtained in violation [of this or arrested and the premises within his immediatethe preceding section] shall be inadmissible for control is valid as an incident to a lawful arrestany purpose in any proceeding [Section 3(2), [People v. Hindoy, G.R. No. 132662 (2001)].Article III, 1987 Constitution]. Theunconstitutionality of the search and the Instead of arresting the suspect after the saleseizure or the use of a void search warrant, in a buy-bust operation, the officer returned torenders the items seized inadmissible in the police headquarters and filed his report. Itevidence. was only in the evening that he, without warrant, arrested the suspect at his houseException: General descriptions will not where dried marijuana leaves were foundinvalidate 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWb. Hot Pursuit Failure to raise the question of admissibilityWhen an offense has just been committed and during the trial is waiver of the right to asserthe has probable cause to believe based on inadmissibility on appeal [Manalili v. CA,personal knowledge of facts or circ*mstances supra].that the person to be arrested has committed it. Waiver is limited to the illegal arrest. It does notRequisites extend to the search made as an incident1. 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 circ*mstances. have a rational expectation of privacy since they are minors and the school is in locoNote: There must be a large measure of parentis. Employees and students inimmediacy between the time the offense is universities, on the other hand, voluntarilycommitted and the time of arrest. If there was subject themselves to the intrusion because ofan appreciable lapse of time between the their contractual relation to the company orarrest and commission of the crime, warrant of university.arrest must be secured [Nachura]. But it is unconstitutional to subject criminals toThe warrantless arrest of accused for selling RDT. Subjecting criminals to RDT would violatemarijuana 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 publicThere is no personal knowledge when the officials whose qualifications are provided for incommission of a crime and identity of the the Constitution (e.g. members of Congress) toaccused were merely furnished by an RDT because it is tantamount to imposing aninformant, or when the location of the firearm additional qualification not provided for in thewas 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 hascommitted a crime. That a crime has actually 3. Warrantless Searchesbeen 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 suspicionc. Escaped Prisoners or belief that a crime has been committed or isWhen 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 oris temporarily confined while his case is Valid Warrantless Searchespending, or has escaped while being a. Warrantless Search is Incidental to atransferred from one confinement to another. Lawful Arrest A person lawfully arrested may be searched ford. Additional Exceptions dangerous weapons or anything which may beWhen 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 voluntarilysubmitted himself to the jurisdiction of the court Absent a valid search warrant, the search isby 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWIt is also a general rule that, as an incident of legally present in the pursuit of their officialan arrest, the place or premises where the dutiesarrest was made can also be searched without 2. Evidence was inadvertently discovered bya search warrant. In this case, the extent and the police who had the right to be wherereasonableness of the search must be decided they areon its own facts and circ*mstances. 3. Evidence must be immediately apparent 4. “Plain view” justified mere seizure ofWhat 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 sameinterest 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 seizedTest for Validity object is inside a closed package, the object isa. Item to be searched was within the not in plain view and, therefore, cannot be arrester’s custody; seized without a warrant. However, if theb. 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, thenAn “arrest being incipiently illegal, it logically the contents are in plain view, and may befollows that the subsequent search was seized [Caballes v. CA, G.R. No. 136292similarly 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 aImmediate Control way least intrusive to motorists [Valmonte v. deImmediate area to the defendant’s person Villa, G.R. No. 83988 (1989)].where there are nearby weapons he could grabto attack the officer or what he has in his These are permissible if limited to thepocket. following: ● Where the officer merely draws aside thePurpose of this Exception curtain of a vacant vehicle which is parkedThe 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 theconcealed 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 isb. Plain View Doctrine limited to a visual search or visualThings seized are within plain view of a inspection; andsearching party. ● Where the routine check is conducted in a fixed area.Requisites1. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWsearches in the absence of probable cause. Purpose of customs searchWhen a vehicle is stopped and subjected to an To verify whether or not custom duties andextensive search - as opposed to a mere taxes were paid for their importation.routine inspection - such a warrantless searchhas been held to be valid only as long as the f. Routine Security Checksofficers conducting the search have The Court held that the search and seizure ofreasonable or probable cause to believe before an illegal drug during a routine airportthe search that they will find the instrumentality inspection made pursuant to the aviationor evidence pertaining to a crime, in the vehicle security procedures as a constitutionallyto be searched [People v. Manago, G.R. No. reasonable administrative search.212340 (2016)]. While the right of the people to be secure ind. Consented Warrantless Search their persons, houses, papers, and effects against unreasonable searches and seizures isRequisites guaranteed by Section 2, Article III of the 19871. Must appear that right exists; Constitution, a routine security check being2. 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 Friskseizure does not constitute a waiver. For a valid stop and frisk search, the arresting officer must have had personal knowledge ofThe waiver may be express or implied. When facts, which would engender a reasonableone 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 inThere is presumption against waiver by the the circ*mstances would be warranted in thecourts. It is the State that has the burden of belief that his safety or that of others was inproving, by clear and convincing evidence, that danger [Terry v. Ohio, 392 U.S. 1 (1968)].the necessary consent was obtained and that itwas voluntarily and freely given [Caballes v. Test for validity of a stop-and-frisk searchCA, supra]. as established by jurisprudence: ● There must be specific and articulable factse. Customs Search (Enforcement of which, taken together with rationalFishing, Customs, and Immigration inferences, reasonably warrant theLaw) intrusion.The police are allowed to conduct warrantless ● The officer must identify himself and makesearches on behalf of the Department of reasonable inquiries.Customs. ● The “frisk” is permitted to search for weapons for the protection of the policeThey are authorized to open and examine any officer, where he has reason to believe thatbox, trunk, or other containers where he has he is dealing with an armed and dangerousreasonable cause to believe that such items individual, regardless of probable cause forwere 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 andTariff Act states that no warrant is required for Accordingly, to sustain the validity of a stop andpolice or authorized persons to pass, enter, frisk search, the arresting officer should havesearch any land, enclosure, building, personally observed two (2) or more suspiciouswarehouse, vessels, aircrafts, vehicles but not circ*mstances, the totality of which would thendwelling. create a reasonable inference of criminal
Page 157 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWactivity to compel the arresting officer to D. Privacy of Communicationsinvestigate further [Manibog v. People, supra]. and Correspondenceh. Exigent and Emergency 1987 Constitution SECTION 3, ARTICLE III. (1) The privacy of communication and correspondenceCirc*mstances shall be inviolable except upon lawful order of theThe raid and seizure of firearms and court, or when public safety or order requiresammunition at the height of the 1989 coup otherwise as prescribed by law.d’état, was held valid, considering the exigentand emergency situation. The military (2) Any evidence obtained in violation of this or theoperatives had reasonable ground to believe preceding section shall be inadmissible for any purpose in any proceeding.that a crime was being committed, and theyhad no opportunity to apply for a searchwarrant from the courts because the latter were 1. Private and Publicclosed. Under such urgency and exigency, a Communicationssearch 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 shadows4. Exclusionary Rule created by several constitutional provisions. That is to say, the right to privacy is locatedAll evidence obtained in violation of Section 2, within the zones created by various provisionsArticle III shall be inadmissible for any purpose of the Constitution and various statutes whichin 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 theobtained 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 communicationThe Exclusionary Rule is also extended to b. Section 1 – Life, liberty, and propertyexclude evidence which is derived or directly c. Section 2 – Unreasonable searches andobtained from that which was illegally seized seizures[Bautista]. d. Section 6 – Liberty of abode e. Section 8 – Right to form associationsOnce the primary source (tree) is shown to f. Section 17 – Right against self-have been unlawfully obtained, any secondary incriminationor derivative evidence (fruit) derived from it isalso inadmissible. a. Three Strands of the Right to Privacy 1. Decisional Privacy - Liberty in theEffects of Unreasonable Searches and constitutional sense must mean more thanSeizures freedom from unlawful governmentalAn unlawful search will result in the exclusion restraint; it must include privacy as well, iffrom admission as evidence of that which was it is to be a repository of freedom. The rightobtained from such unlawful search and to be let alone is indeed the beginning of allseizure. freedom...The concept of liberty would be emasculated if it does not likewise compelFurther, an unlawful search and seizure may respect for his personality as a uniquejustify: 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW 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 lawb. Requisites of the Existence of the E.O. No. 424 (s. 2005), adopting a unifiedRight 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 andcommunication covered: An intrusion into the privacy of workplaces is1. Letters valid if it conforms to the standard of2. Messages reasonableness. It is justified at inception if3. Telephone calls there are reasonable grounds for suspecting4. Telegrams that it will turn up evidence that the employee5. Others analogous to the foregoing [Bernas] is guilty of work- related misconduct [Pollo v. Constantino-David, supra].c. Right of Privacy vs. Freedom ofSpeech 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 notto privacy is invalid when: There is a automatically destroy in toto a person’s right toreasonable expectation of privacy; and if there privacy.is no compelling state interest.
Page 159 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWd. Online Privacy them for any telltale evidence of maritalIt 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 tothe employment of measures to prevent access privacy as an individual and the constitutionalthereto or to limit its visibility (This case; OSN protection is ever available to him or her.Privacy Tools). Therefore, a Facebook userwho opts to make use of a privacy tool to grantor deny access to his or her post or profile detailshould not be denied the informational privacyright which necessarily accompanies saidchoice [Vivares v. St. Theresa’s College, G.R.No. 202666 (2014)].
3. Exclusionary Rule
Any evidence obtained in violation of Sections2 or 3, Article III shall be inadmissible for anypurpose in any proceeding [Section 3(2),Article III, 1987 Constitution].
This applies not only to testimonial evidencebut also to documentary and object evidence.
The Anti-Wire Tapping Act (R.A. No. 4200),clearly and unequivocally makes it illegal forany person, not authorized by all the parties toany private communication, to secretly recordsuch communications by means of a taperecorder. The law does not make anydistinction [Ramirez v. CA, G.R. No. 93833(1995)].
Effect of violation: The communication shallnot be admissible in evidence in any judicial,quasi- judicial, legislative, or administrativehearing or investigation [Section 4, R.A. No.4200].
Generally, the provisions in the Bill of Rightsare protections against the government.However, in the case of Zulueta v. CA the Courthas recognized an instance where it may alsobe applied as against a private individual.
Note: While Zulueta seems to be an exceptionto the State Action Requirement, Zulueta’sapplication of the exclusionary rule has onlybeen cited once but to a state action.
In that case, the wife took her husband‘sprivate documents and papers to be used asevidence in the case, without the husband’sknowledge and consent, the Court held that theintimacies between husband and wife do notjustify any one of them in breaking the drawersand cabinets of the other and in ransacking Page 160 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWD. 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 disturbThe scope of freedom of expression is so broad the public peace or attempt to subvert thethat it extends protection to nearly all forms of government [Near v. Minnesota, 283 U.S. 697communication. It protects speech, print and (1931)].assembly regarding secular as well as politicalcauses, and is not confined to any particular Examples:field of human interest [Chavez v. Gonzales, ● Censorship - Censorship conditions theG.R. No. 16338 (2008)]. exercise of freedom of expression upon the prior approval of the government. TheThe 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 ownWhile the right has a widespread scope, it is not subjective standards in determining what isabsolute. Examples of unprotected speech good and what is not.are obscenity, child p*rnography, and libel. ● Permits ● Business closureFreedom of Expression and the Right toPrivacy General RuleFreedom of speech and expression includes 1. Any system of prior restraints offreedom to film and produce motion pictures expressions comes to the Court bearing aand to exhibit them. The fact that such film heavy presumption against itsproduction is a commercial activity is not a constitutionality, giving the government adisqualification for availing of freedom of heavy burden to show justification for thespeech 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. Evenpublication and dissemination of matters of restriction of circulation constitutespublic interest. The intrusion is no more than censorship [Grosjean v. American Pressnecessary to keep the film a truthful historical Co., Inc., 297 US 233 (1936)].account. Enrile is a public figure because of hisparticipation as a principal actor in the Examples of Unconstitutional Priorculminating events of the EDSA revolution Restraint[Ayer Prod. PTY. LTD. v. Judge Capulong, ● COMELEC prohibition against radiosupra]. commentators and newspaper columnists from commenting on the issues involved in1. Prior Restraint and Subsequent a scheduled plebiscite [Sanidad v. Punishment COMELEC, G.R. No. 90878 (1990)] ● Arbitrary closure of a radio station [Easterna. Prior restraint Broadcasting v. Dans, Jr., G.R. No. L-Refers to official governmental restrictions on 59329 (1985)]; or even when there is legalthe press or other forms of expression in justification, such as lack of mayor’s permitadvance 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 mobileNot all prior restraint is invalid. But all prior units such as cars and other vehiclesrestraints are presumed invalid (“any act that Page 161 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW [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 ofb. Subsequent Punishment speech or of the press based on content isFreedom of speech includes freedom after given the strictest scrutiny in light of its inherentspeech. 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 dangercriticized (chilling effect). test: There is to be then no previous restraint on the communication of views or subsequentExample of Valid Subsequent [...] unless there be a clear and presentPunishment 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 [Article354, Revised Penal Code] Page 162 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWFreedom of Expression and the 4. The incident restriction is no greater thanAdministration of Justice essential to the furtherance of that interestThe administration of justice and the freedom [US v. O’Brien, 391 U.S. 367 (1968)].of the press, though separate and distinct, areequally sacred, and neither should be violated Content-Based Content-by the other. The press and the courts have Neutralcorrelative rights and duties and shouldcooperate to uphold the principles of the Object of restraintConstitution and laws, from which the formerreceives its prerogative and the latter its The content: The Incidents ofjurisdiction [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 publicIn 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 ofjustice by the courts is an abuse of the liberty Testof speech or press such as will subject theabuser to punishment for contempt of court. a. Clear and Only a substantial present danger governmentalWhat criticisms are allowed by the court? test: There must be interest is requiredCriticisms 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 achasm exists between fair criticism, on the one substantive evil that Intermediatehand, 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. SomewhereG.R. No. 27654 (1970)]. Bagatsing, supra] between the mere b. Balancing of rationality that isb. Content Neutral Regulations interests required of any otherRegulations on the incidents of speech — time, c. Dangerous law and theplace, and manner — under well-defined Tendency compelling intereststandards [Newsounds Broadcasting Network d. Direct incitement standard applied tov. Dy, supra]. content- based restrictions [ChavezWhen the speech restraints take the form of a v. Gonzales, supra].content-neutral regulation, only a substantialgovernmental interest is required for its 3. Facial Challenges andvalidity. Because regulations of this type arenot designed to suppress any particular Overbreadth Doctrinemessage, they are not subject to the strictestform of judicial scrutiny but an intermediate a. General Rule: As Appliedapproach — somewhere between the mere A party can question the validity of a statuterationality that is required of any other law and only if, as applied to him, it is unconstitutionalthe compelling interest standard applied to [Southern Hemisphere v. Anti-Terrorismcontent- based restrictions [Chavez v. Council, G.R. No. 178552 (2010)].Gonzales, supra]. b. Exception: Facial ChallengeA government regulation is sufficiently A facial challenge may be directed against ajustified if: vague statute or to one which is overbroad1. It is within the constitutional power; because of the possible “chilling effect” the2. It furthers an important or substantial statute will have on protected speech. The government interest; theory is that “[w]hen statutes regulate or3. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWsociety of constitutionally protected expression This rule also requires that “the danger createdis deemed to justify allowing attacks on overly must not only be clear and present but alsobroad statutes with no requirement that the traceable to the ideas expressed”person making the attack demonstrate that hisown conduct could not be regulated by a Concept of “Clear”statute drawn with narrow specificity” [Gooding There must be a connection with the danger ofv. Wilson, 405 U.S. 518 (1972)]. the substantive evil arising from the utterance questioned.This rationale does not apply to penal statuteswithout a free speech aspect. Criminal statutes Concept of “Present”have general in terrorem effect resulting from Involves the time element, identified withtheir very existence and, if facial challenges imminent and immediate danger. The dangerwere allowed for this reason alone, the State must not only be probable but very likelymay well be prevented from enacting laws inevitable [Gonzales v. COMELEC, supra].against socially harmful conduct. In the area ofcriminal law, the law cannot take chances as in The evil consequence of the comment orthe area of free speech [Southern Hemisphere utterance must be “extremely serious and thev. Anti- Terrorism Council, supra]. degree of imminence extremely high” before the utterance can be punished. The danger toHowever, said doctrine applies to penal be guarded against is the “substantive evil”statutes when: sought to be prevented. And this evil isa. 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 suchc. Overbreadth Doctrine advocacy will harm the administration of justiceThe statute must be carefully drawn or be [Cabansag v. Fernandez, supra].authoritatively construed to punish onlyunprotected speech and not be susceptible of Note: This test has been adopted by SC and isapplication to protected expression [Gooding v. the test most applied to cases re: freedom ofWilson, supra]. expression.
A law may be invalidated as overbroad if a b. Balancing of Interests Testsubstantial number of its applications are When a particular conduct is regulated in theunconstitutional, judged in relation to the interest of public order, and the regulationstatute’s plainly legitimate sweep [US v. results in an indirect, conditional and partialStevens, 559 U.S. 460 (2010)]. abridgement of speech, the duty of the courts is to determine which of the two conflictingA governmental purpose may not be achieved interests demands greater protectionthrough 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 TestThe question in every case is whether the Factors to consider: [Soriano v. Laguardia,words used are used in such circ*mstances supra]and are of such nature as to create a clear and 1. Social value of the freedom restrictedpresent danger that they will bring about the 2. Specific thrust of the restriction, i.e. directsubstantive evils that Congress has a right to or indirect, affects many or fewprevent. 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 reasonablyBurden of proof: With the government. appropriate and necessary for the protection of the public interest Page 164 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW5. 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, andc. Dangerous Tendency Test radio broadcasting is somewhat lesser than theIn each case, courts must ask whether the freedom accorded to newspapers and othergravity of the “evil”, discounted by its print media [Chavez v. Gonzales, supra].improbability, justifies such invasion of freespeech 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 whichUnder this test, the question is whether the the medium operates, i.e., airwaves arewords will create a dangerous tendency that physically limited while print medium maythe 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; andit 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 protectionIt is sufficient if the natural tendency and the of the freedom of expression clause. The testprobable effect of the utterance were to bring for limitations on freedom of expressionabout the substantive evil that the legislative continues to be the clear and present dangerbody seeks to prevent [People v. Perez, supra]. test [Eastern Broadcasting v. Dans, Jr., supra].
d. O’Brien Test Movie CensorshipA government regulation is sufficiently justified Censorship is allowable only under the clearestif: proof of a clear and present danger of a1. 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 expression4. 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 probable5. 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 theFour Aspects of Freedom of the Press exhibition and/or television broadcasts of1. Freedom from prior restraint; television programs.” The law also directs the2. Freedom from punishment subsequent to Board to apply contemporary Filipino culture publication; values as the standard to determine those3. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWThe law gives the Board the power to screen, expression is not absolute [and that] somereview and examine all “television programs”, forms of speech are still subject to somewhether religious, public affairs, news restrictions.documentary, etc. [Iglesia ni Cristo v. CA,supra]. b. Defamation and Libel
Notwithstanding the fact that freedom of Libelreligion 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 protectnot exempt from the MTRCB’s power to review. individuals from defamation [Disini v. Sec. ofIf the Court [...] did not exempt religious Justice, G.R. No. 203335 (2014)].programs from the jurisdiction and reviewpower 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 wereInside Story” which [...] is protected by the actuated by ill will in what they caused to beconstitutional provision on freedom of published, with a design to injure the plaintiff.expression and of the press, a freedom bearingno preferred status [MTRCB v. ABS-CBN, G.R. In US v. Bustos, supra, a criminal action wasNo. 155282 (2005)]. instituted against defendants for allegedly publishing writings which were libelous againstRegardless of the regulatory schemes that a justice of the peace. The SC held that the saidbroadcast media is subjected to, the SC has writings constitute qualifiedly privileged matterconsistently held that the clear and present as public opinion, therefore, they cannot bedanger test applies to content-based presumed malicious.restrictions on media, without making a In In Re: Jurado, supra, the SC held that falsedistinction as to traditional print or broadcast reports about a public official or other personmedia [Chavez v. Gonzales, supra]. are not shielded from sanction by the right toRadio Censorship free speech. Free speech has neverIn 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 unmitigatedclaim that Far Eastern Broadcasting had no dissemination of patent lies.right to require the submission of themanuscript. It is the duty of Far Eastern Group LibelBroadcasting to require the submission of a Where the defamation is alleged to have beenmanuscript as a requirement in broadcasting directed at a group or class, it is essential thatspeeches. the statement must be so sweeping or all- embracing as to apply to every individual in thatStrict rules have also been allowed for radio group or class, or sufficiently specific so thatbecause of its pervasive quality and because each individual in the class or group can proveof the interest in the protection of children [FCC that the defamatory statement specificallyv. 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 toHate Speech recover damages for tortious libel becomeSpeech designed to promote hatred on the elusive. This principle is said to embrace twobasis of race, religion, ethnicity or national important public policies:origin [Rosenfield, Hate Speech in 1. Where the group referred to is large, theConstitutional Jurisprudence]. courts presume that no reasonable reader. would take the statements as so literallyIn Philippine jurisdiction, it is arguable that applying to each individual member; and“hate speech” is not protected speech. In 2. The limitation on liability wouldDiocese of Bacolod v. COMELEC, the Court satisfactorily safeguard freedom of speechrecognized that [t]he right to freedom of and expression, as well as of the press, Page 166 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW 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, applyingHeckler’s Veto contemporary community standards,Heckler’s veto is an attempt to limit unpopular would find that the work, taken as aspeech. 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 ora reacting party’s behavior. excretory functions, specifically defined by applicable state law; andUnder 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 dangerof grave and imminent harm, which is not Community Standardeasy to prove. Pictures depicting inhabitants of the country in their native dress as they appear and can beIncitement and Advocacy seen in the regions in which they live are notCriticism of the government, no matter how obscene or indecent. The pictures in questionsevere, 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/p*rnography Child p*rnographyObscenity Child p*rnography, in all mediums, isThe 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-Childimmoral and indecent materials must justify the p*rnography Act of 2009regulation or limitation. 2. R.A. No. 9208 or the Anti-Trafficking Persons Act of 2003No one will be subject to prosecution for the 3. R.A. No. 10175 or the Cybercrimesale or exposure of obscene materials unless Prevention Act of 2012 (which increasedthese materials depict or describe patently the penalties of offenses under RA No.offensive hard core sexual conduct. Examples 9775 if committed through a computerincluded (a) patently offensive representations system)or descriptions of ultimate sexual acts, normal 4. R.A. No. 7610 or the Special Protection ofor perverted, actual or simulated; and (b) Children Against Abuse, Exploitation andpatently offensive representations or Discrimination Act (also known as the Childdescriptions 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 Speechproper 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 thejudge’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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW2. 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-159053. The regulation must advance government (1966)]. interest; and4. The regulation must not be overbroad. False reports about a public official or other person are not shielded by the right to freef. Political Speech speech enshrined in the Constitution. Making knowingly false statements made with recklessPolitical Speech disregard of the truth does not enjoyConsidered pure and protected speech. The constitutional protection. The guaranty of freegovernment is required to prove a “true threat”, speech cannot be considered as accordingit cannot punish mere political hyperbole [Watts protection to the disclosure of lies, gossip orv. US, 394 U.S. 705 (1969)]. rumor [In Re: Jurado, supra].
A tarpaulin that expresses a political opinionconstitutes political speech. Speech thatpromotes dialogue on public affairs, or airs outgrievances and political discontent, should beprotected and encouraged [Diocese ofBacolod 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 EmergenciesOne of the misfortunes of an emergency,particularly, that which pertains to security, isthat military necessity and the guaranteedrights of the individual are often not compatible.
The right against unreasonable search andseizure; the right against warrantless arrest;and the freedom of speech, of expression, ofthe press, and of assembly under the Bill ofRights suffered the greatest blow [David v.Macapagal-Arroyo, supra].
h. Speech of Public OfficersA libelous letter of a congressman, published ina newspaper, does not fall under “speech ordebate” protected by the Constitution. Speechor debate refers to speeches, statements, orvotes made within Congress while it is insession, or duly authorized actions of Page 168 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWE. 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. On1. 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 sincerelya. 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 unmistakablyConcept non-secular [Glassroth v. Moore, 335 F.3d“From the religious perspective, religion 1282 (2003)]requires voluntarism because compulsory faith ● Mandatory religious subjects or prohibitionlacks religious efficacy. Compelled religion is a of secular subjects (evolution) in schoolscontradiction in terms [...] Such voluntarism [Epperson v. Arkansas, 393 U.S. 97cannot be achieved unless the political process (1968)]is insulated from religion and unless religion is ● Mandatory bible reading in school (a forminsulated 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. 203matters to uphold voluntarism and avoid (1963)]breeding interfaith dissension” [Estrada v.Escritor, A.M. No. P-02-1651 (2003)]. Permissible ActsNote: In Estrada v. Escritor, the petitioner fileda complaint against the respondent, who was a 1. Constitutionally createdcourt employee, praying for her dismissal onaccount of immorality for cohabiting with a man Tax Exemptionnot 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 governmententanglement with, endorsem*nt or Page 169 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWOperation 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 architecturalReligious 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 exerciseLimited 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 Aspect2. Test to Determine the Constitutionality of a. Freedom to believe — AbsolutePolicies Challenged Under the b. Freedom to act on one’s belief — SubjectEstablishment Clause (Lemon Test): to regulationa. The statute must have a secular legislative purpose; Conduct remains subject to regulation for theb. 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 thec. 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 unduly3. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW● 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 a2. Conscientious Objectors clear and present danger of any substantive evil, which the state has a right to preventConscientious 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 theconscientious objector the duty to refer the b. Benevolent Neutrality — Compellingpatient seeking reproductive health services to State Interestanother medical practitioner. Under the Benevolent Neutrality Doctrine, this is the proper test where conduct arising fromA conscientious objector should be exempt religious belief is involved:from compliance with the mandates of the RH 1. Has the government action created aLaw. If he is compelled to act contrary to his burden on the free exercise? The Courtreligious belief and conviction, it would be must look into sincerity (but not trust) ofviolative of "the principle of non-coercion" belief.enshrined in the constitutional right to free 2. Is there a compelling state interest to justifyexercise of religion. the infringement? 3. Are the means to achieve the legitimateThe Court found no compelling state interest state objective the least intrusive? [Estradawhich would limit the free exercise of v. Escritor, supra]conscientious objectors. Only the prevention ofan immediate danger to the security andwelfare of the community can justify the F. Liberty of Abode and Right toinfringement of religious freedom [Imbong v. TravelOchoa, supra]. 1987 Constitution, SECTION 6, ARTICLE III. TheDuty to Refer in the RH Law is violative of liberty of abode and of changing the same within thethe Free Exercise Clause limits prescribed by law shall not be impaired exceptThe provisions mandating a “hospital or a upon lawful order of the court. Neither shall the rightmedical practitioner to immediately refer a to travel be impaired except in the interest of nationalperson seeking health care and services under security, public safety or public health, as may be provided by law.the law to another accessible healthcareprovider despite their conscientious objectionsbased on religious or ethical beliefs” is violative 1. Scope and Limitationsof free exercise. The Court held that this opt-out class is a false compromise because it Scopecannot force someone, in conscience, to do Freedom of movement includes two rights:
Page 171 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW1. Liberty of abode. A person’s right to travel is subject to usual2. 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 toMay be impaired only upon lawful order of the choose any vehicle in traversing a toll way. Thecourt. right to travel refers to the right to move from one place to another. The right to travel doesThe court itself is to be guided by the limits not entitle a person to the best form of transportprescribed 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 validlimitation to liberty. Proclamation No. 475 does not constitute an impairment of the right to travel. Any bearingb. Liberty of travel that Proclamation No. 475 may have on theMay be impaired even without a lawful order of right to travel is merely corollary to the closurethe court. of Boracay and the ban of tourists and non- residents therefrom which were necessaryWhile 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 witharbitrary discretion to impose limitations. Such Several laws recognized as constituting anlimits 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 anlimitive phrase which did not exist in the 1973 individual charged with the crime oftext [Silverio v. CA, G.R. No. 94284 (1991), terrorism even though such person is outciting 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 ofjudicial review. Foreign Affairs or his authorized consular officer may refuse the issuance of, restrictThe executive of a municipality does not have the use of, or withdraw, a passport of athe right to force citizens of the Philippines to Filipino citizen [The Philippine Passport Actchange 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, the14639 (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 andallowed to avoid the possibility of losing Enforcement Unit to 'offload passengersjurisdiction if accused travels abroad [Manotoc with fraudulent travel documents, doubtfulv. CA, G.R. No. L- 62100 (1986)]. purpose of travel, including possible victims of human trafficking' from our ports [TheOCA Circular No. 49-2003 which requires that Anti-Trafficking in Persons Act of 2003 orall 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 Philippinedoes not restrict, but merely regulates, the right Overseas Employment Administrationto travel. (POEA) may refuse to issue deployment permit[s] to a specific country thatTo “restrict” is to restrain or prohibit a person effectively prevents our migrant workers tofrom doing something, to “regulate” is to govern enter such country [The Migrant Workersor 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW● 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 on2. Watch-List and Hold Departure Precautionary Hold Departure Order]. Orders Distinction between WLO and HDOPrecautionary Hold Departure Order The WLO also does not bear a significant(PHDO) distinction from a HDO, thereby giving theIt 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 thatprevent any attempt by a person suspected of whatever is not covered in Section 1,whicha crime to depart from the Philippines which pertains to the issuance of HDO, canshall be issued ex-parte in cases involving conveniently fall under Section 2,which calls forcrimes where the minimum of the penalty the issuance of WLO. In any case, there is anprescribed by law is at least six years and one identical provision in DOJ Circular No. 41 whichday, or when the offender is a foreigner authorizes the Secretary of Justice to issue aregardless of the imposable penalty [Section 1, HDO or WLO against anyone, motu proprio, inRule on Precautionary Hold Departure Order]. the interest of national security, public safety or public health. With this all-encompassingWho files an application for a PHDO? provision, there is nothing that can prevent theProsecutor Secretary of Justice to prevent anyone from leaving the country under the guise of nationalWhere is it filed? security, public safety or public health [GenuinoGeneral Rule: A PHDO is filed with any RTC v. De Lima, supra].within whose jurisdiction the alleged crimewas committed. G. Right to InformationExceptions 1987 Constitution, SECTION 7, ARTICLE III. TheFor compelling reasons, it can be filed with right of the people to information on matters of publicANY RTC within the judicial region where the concern shall be recognized. Access to officialcrime was committed if the place of the records, and to documents and papers pertaining tocommission 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 toThe RTCs in the City of Manila, Quezon City, such limitations as may be provided by law.Cebu City, Iloilo City, Davao City and Cagayande Oro City shall also have the authority to acton 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 fullcommitted [Section 2, Rule on Precautionary public disclosure of all its transactions involving public interest.Hold Departure Order].
Page 173 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW 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 jurisprudence1. 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 sanitarianInformation [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 [GonzalesPolicy 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 propositionsConcern [Section 7, Article III, 1987 by the government, and should not coverConstitution] 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 committeeand all information” [Legazpi v. CSC, G.R. No. makes an official recommendation, thereL-72119 (1987)]. It is limited to matters of arises a definite proposition. From thispublic concern, and is subject to such moment, the public’s right to informationlimitations as may be provided by law. Also, the attaches, and any citizen can assail theState’s policy of full disclosure is restricted to nonproprietary information leading to suchtransactions involving public interest, and is definite propositions [Chavez v. PEA andfurther 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 byThere is no rigid test in determining whether or writ of mandamusnot a particular information is of public concern 1. The information sought must be in relationor public interest. Both terms cover a wide- to matters of public concern or publicrange 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 thedirect 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 theinformation sought is of public interest or public Restrictions to Right to Informationconcern is left to the proper determination of The right of the people to information must bethe courts on a case-to-case basis [Sereno v. balanced against other genuine interestsCTRM-NEDA, supra]. Page 174 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWnecessary for the proper functioning of the H. Eminent Domaingovernment [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 Information1. Privileged information rooted in separation of powers 1. Concept2. Information on military and diplomatic The power of eminent domain is the inherent secrets right of the State to forcibly acquire needed3. 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 its7. 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 orb. Based on Access clear implication of the statute in which the1. 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 otherThe 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 lawthe power to prohibit; thus, while the manner of [Manapat v. CA, supra].examining public records may be subject toreasonable regulation by the government Under the existing laws, the following mayagency in custody thereof, the duty to disclose exercise the power of expropriation:the information of public concern, and to afford 1. Congressaccess to public records cannot be 2. Presidentdiscretionary 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) andc. Based on Availability water districts [Metropolitan Cebu WaterThe 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 theagency has the burden of showing that the Philippine National Railways (PNR), PLDT,information requested is not of public concern, Meralcoor if it is of public concern, that the same hasbeen exempted by law from the operation of Requisites for Valid Exercisethe guarantee [Legaspi v. CSC, supra]. 1. Private property Page 175 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW2. 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 of3. 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 compensation5. Due process [Manapat v. CA, supra] Examples from Jurisprudence The imposition of an aerial easem*nt 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 domaineminent domain shall be exercised through does not always result in the taking orexpropriation proceedings in court. Whenever appropriation of title to the expropriatedprivate property is taken for public use, it property; it may also result in the imposition ofbecomes the ministerial duty of the concerned a burden upon the owner of the condemnedoffice or agency to initiate expropriation property, without loss of title or possessionproceedings [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 whichPrior filing of an expropriation case is a would impair the view of the plaza from thecondition sine qua non before the government highway was considered regulatory takingis allowed to enter the property being reclaimed [People v. Fajardo, G.R. No. L-12172 (1958)].and without which, the government’spossession over the subject property becomes Public Useillegal [Secretary of the Department of Public Any use directly available to the general publicWorks and Highways v. Tecson, G.R. No. as a matter of right and not merely of179334 (2015)]. forbearance of accommodation.
However, full payment of just compensation is Public use may also cover uses which, whilenot a prerequisite for the Government’s not directly available to the public, redound toeffective taking of the property. When the their indirect advantage or benefit.taking of the property precedes the payment ofjust compensation, the Government shall The requirement of public use is deemedindemnify 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 amaterial impairment of the value of his Under the new concept, "public use" meansproperty, 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 welfarePhil. 37, 54 (2015), citing Ansaldo v. Tantuico, and the prosperity of the whole community, likeJr., 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 apublic purpose or public use; and 2. Just Compensationb. the determination of just compensation to bepaid for the taking of private property to be a. Definitionmade by the court with the assistance of not The property’s fair market value at the time ofmore than three commissioners [Republic v. the filing of the complaint, or that sum of moneyMupas, supra]. which a person desirous to buy but not Page 176 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWcompelled to buy, and an owner willing but not long line of cases, the fair market value of thecompelled to sell, would agree on as price to property at the time of taking is controlling forbe given and received therefor [National purposes of determining just compensationPower Corporation v. Baguio, G.R. No. L- [Estate of Susano J. Rodrguez v. National15763 (2008)]. Transmission Corporation, G.R. No. 245377 (2020)].b. Determination of Just CompensationDetermination of just compensation is a In cases where the fair market value of thejudicial function that cannot be “usurped by property is difficult to ascertain, the court mayany 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 marketNo. 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 easem*nt 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 [RepublicGeneral Rule: Just compensation is v. Sps. Salvador, supra].determined as of the date of the taking of theproperty, or the filing of the complaint, Prevailing rate of interestwhichever 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, itis computed at the time of filing [City of Iloilo v. Just compensation contemplates just andJudge 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 theWhen the taking of the property sought to be courts.expropriated coincides with thecommencement of the expropriation Absent full payment of just compensation,proceedings, or takes place subsequent to the interest on the unpaid portion (i.e., the justfiling of the complaint for eminent domain, the compensation determined by the court at thejust compensation should be determined as of time the decision becomes final and executorythe date of the filing of the complaint [City of minus the initial deposit), likewise runs as aIloilo v. Judge Contreras Besana, supra]. matter of law and follows as a matter of course [Republic v. Decena et al, G.R. No. 212786Exception: When the property is taken before (2018)]the filing of the complaint, assessment shouldbe 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 theDepartment 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW 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 promote2. 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 isthe 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 topossession 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 purposesAuthority, G.R. No. 147511 (2003)]. not contrary to law” be interpreted? Unless an association or society could beException: When the government fails to pay shown to create an imminent danger to publicjust compensation within five years from the safety, there is no justification for abridging thefinality of the judgment in the expropriation right to form associations.proceedings, the owners concerned shall havethe 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 to3. Expropriation by Local protect [Bernas]. Government Units 1. Scope and LimitationsRequisites1. Enactment of an ordinance, not a The right is recognized as belonging to people resolution whether employed or unemployed, and2. 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 landless3. Payment of just compensation The State does not infringe on the fundamental4. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWPolitical parties may freely be formed although This provision prohibits the passing of a lawthere is a restriction on their activities [...] but that changes the terms of an already existingthe 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 partiesA political group should not be hindered solely 2. Imposes new conditionsbecause it seeks to publicly debate 3. Dispenses with those agreed upon, orcontroversial political issues in order to find 4. Withdraws remedies for the enforcement ofsolutions 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 areincompatible with democracy does it fall A change in procedural remedies which doesoutside the protection of the freedom of not diminish substantive rights or increaseassociation guarantee [Ang Ladlad LGBT Party substantive obligations does not violate thev. COMELEC, supra]. guarantee.
Freedom not to associate Substantial impairment is a law which changesFreedom 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, orJaycees, supra] imposes new conditions, or dispenses with those expressed, or authorizes for itsGovernment actions that unconstitutionally satisfaction something different from thatburden that right may take many forms, one of provided in its terms, is law which impairs thewhich is intrusion into a group’s internal affairs obligation of a contract and is therefore null andby forcing it to accept a member it does not void [Lepanto Consolidated Mining Co. v. WMCdesire. Such forced membership is Resources Int'l. Pty. Ltd., G.R. No. 162331unconstitutional if the person’s presence (2006)].affects in a significant way the group’s ability toadvocate 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 ClauseJ. 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 to1. Concept and Limitations apply retroactively [Co v. Philippine National Bank, G.R. No. 51767 (1982)].The non-impairment clause ensures that theintegrity of contracts is protected from any b. When Non-Impairment Clause Yieldsunwarranted State interference. It ensures that 1. Valid exercise of police power (i.e. zoningthe terms of a contract mutually agreed upon regulation) [Presley v. Bel-Air Villageby 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 [PhilippineThe 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. 67125or 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW6. Judicial or quasi-judicial order the latter, who may alter the same” [Ocampo v. Enriquez, supra].Examples of valid impairment ofcontracts K. Free Access to Courts and1. 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 bodies2. 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. ExclusionsThe non-impairment clause is a limit on Rules of Court, SECTION 19, RULE 141. Indigentlegislative 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 MetroExamples of contracts not included in the Manila, and three thousand (P3,000.00) pesos aprovision: month if residing outside Metro Manila, and (b) who do not own real property with an assessed value of1. 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 judgment3. 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 aboveNote: Timber licenses, permits, and license mentioned, nor they own any real property with theagreements are the principal instruments by assessed value aforementioned, supported by anwhich 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 thatpublic welfare is promoted. They are not Any falsity in the affidavit of a litigant or disinteresteddeemed contracts within the purview of the due person shall be sufficient cause to strike out theprocess of law clause [Oposa v. Factoran, G.R. pleading of that party, without prejudice to whateverNo. 101083 (1993)]. criminal liability may have been incurred.
The Court held that the non-impairment clause Conceptdoes not apply to the 1992 Memorandum of The Constitution explicitly premised the feeAgreement (MOA) between The Government access clause on a person’s poverty, aof the Republic of the Philippines and the condition from which only a natural person canMarcos family. If one Congress cannot limit or suffer.reduce the plenary legislative power ofsucceeding Congresses, so, too, the exercise Extending fee exemption to a juridical personof executive power by the past president may be prone to abuse by corporations andcannot emasculate that of the incumbent entities bent on circumventing the rule thereof.president. The discretionary act of the former isnot binding upon and cannot tie the hands of
Page 180 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWIndigent party L. Rights under CustodialA party may be authorized to litigate his action,claim or defense as an indigent if the court, Investigationupon an ex parte application and hearing, issatisfied 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 commissionfood, 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 andand his family. independent counsel preferably of his own choice. If the person cannot afford the services of counsel, heSuch authority shall include an exemption from must be provided with one. These rights cannot bepayment of docket and other lawful fees, and waived except in writing and in the presence ofof 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 beIf 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 detentionRule 141, then the grant of the application is are prohibited.mandatory. When the application does notsatisfy one or both requirements, then the (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible inapplication should not be denied outright; evidence against him.instead, the court should apply the “indigencytest” under Section 21 of Rule 3 and use its (4) The law shall provide for penal and civil sanctionssound discretion in determining the merits of for violations of this section as well as compensationthe prayer for exemption [Sps. Algura v. LGU to the rehabilitation of victims of torture or similarof Naga City, G.R. No. 150135 (2006)]. practices, and their families.
Free access to the court does NOT meanthe 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 mustCooperatives 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, andfor 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 andcooperatives, 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW 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 Availablea. When the person is already under custodial a. Right to Remain Silent investigation The warning is needed simply to make theb. 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 individualAny 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 generalinquiry unto an unsolved crime but has begun The warning of the right to remain silent mustto focus on a particular suspect, as when the be accompanied by the explanation thatsuspect has been taken into police custody and anything said can and will be used against thethe police carries out a process of interrogation individual in court. This warning is needed inthat lends itself to eliciting incriminating order to make him aware not only of thestatements [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 underinvestigation in connection with an offense he b. Right to Counselis suspected to have committed [Section 2, R.A. No. 7438: Rights Of Persons UnderR.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 custodiala. Reduced to writing by the investigating investigation shall at all times be assisted by officer. counsel. xxxb. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWNon-independent counsels include: a special 3. Requisites of a Valid Waivercounsel, prosecutor, counsel for the police or a R.A. No. 7438: Rights Of Persons Undermunicipal attorney whose interest is adverse to Custodial Investigation, SECTION 2. Rights ofthat of the accused [People v. Fabro, G.R. No. Persons Arrested, Detained or Under Custodial95089 (1997); Mayor [People v. Taliman, G.R. Investigation; Duties of Public Officers. — XxxNo. 109143; Barangay captain [People v. (c) The custodial investigation report shall beTomaquin, 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 detainedA lawyer who was applying for work in the NBI does not know how to read and write, it shall be readcannot be considered independent because he and adequately explained to him by his counsel orcannot be expected to work against the interest by the assisting counsel provided by theof a police agency he was hoping to join, as a investigating officer in the language or dialect knownfew months later, he in fact was admitted into to such arrested or detained person, otherwise, suchits 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 underNon-competent counsel: Lawyer signing only the provisions of Article 125 of the Revised Penalas 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 presencedetained [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 counselduring 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, 1987Request for assistance of counsel before any Constitution]interrogation cannot be ignored/denied by a. Must be in writingauthorities. Not only the right to consult with an b. Must be made in the presence of counselattorney but the right to be given a lawyer torepresent 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWremoved from the illegally seized evidence, but M. Rights of the Accusedit is equally inadmissible. The rule is based onthe principle that evidence illegally obtained bythe State should not be used to gain other 1987 Constitution, SECTION 14, ARTICLE III. (1) No person shall be held to answer for a criminalevidence because the originally illegally offense without due process of law.obtained evidence taints all evidencesubsequently obtained [People v. (2) In all criminal prosecutions, the accused shall beSamontañez, G.R. No. 134530 (2000)]. presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself andViolations 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 faceor admission made during the custodial to face, and to have compulsory process to secureinvestigation. The admissibility of other the attendance of witnesses and the production ofevidence 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 ofinvestigation [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 personarrested, 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 trialOtherwise, such extrajudicial confession shall dates until custody over him isbe 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 itIn the absence of a valid waiver, any sufficiently appears to the court that he can properly protect hisconfession obtained from the appellant during right without the assistance ofthe police custodial investigation relative to the counsel.crime, including any other evidence secured by d. To testify as a witness in his own behalf butvirtue of the said confession is inadmissible in subject to cross-examination on mattersevidence even if the same was not objected to covered by direct examination. His silenceduring 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW 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 we1. Criminal Due Process cannot allow because bail is not intended as a punishment, nor as a satisfaction of civil liabilityDue process in criminal proceedings is which should necessarily await the judgment ofsatisfied 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 torest on evidence that is not tainted with falsity Basis of Rightafter full opportunity for him to rebut it and the The basis of the right to bail is thesentence being implied in accordance with a presumption of innocence, which isvalid law. It is assumed, of course, that the accorded to every accused upon whom shouldcourt that rendered the decision is one of not be inflicted incarceration at the outsetcompetent jurisdiction [Mejia v. Pamaran, G.R. since, after the trial, he would be entitled toNo. 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; Exceptionsb. Accused is proceeded against under the orderly process of law; General Rule: All persons under custody ofc. Accused is given notice and opportunity to law may avail of bail. be heard; andd. Judgment rendered is within the authority Exceptions: of a constitutional law a. Those charged with a capital offense, or an offense punishable by reclusion perpetua2. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWprecluded from filing a motion to quash. Also, Bail as a Matter of Discretionthe court will be assured of the presence of the When the accused has been convicted in theaccused 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, thestage of the proceeding [Lavides v. CA, G.R. admission to bail becomes discretionaryNo. 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 ofIn 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), citingright or discretion, the prosecutor must be Cortes v. Catral, A.M. No. RTJ-97-1387given 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 toThe prosecution must first be accorded an present, within a reasonable time, all theopportunity to present evidence. It is on the evidence that it may desire to introduce beforebasis of such evidence that judicial discretion is the court should resolve the motion for bailexercised in determining whether the evidence [People v. Judge Donato, G.R. No. 79269of guilt of the accused is strong. In other words, (1991)].discretion must be exercised regularly, legallyand within the confines of procedural due In case the evidence of guilt is strongprocess, that is, after evaluation of evidence In such a case, according to People v. Sansubmitted by the prosecution [Taborite v. Diego [G.R. No. L-29676 (1966)] the court’sSollesta, supra]. discretion to grant bail must be exercised in the light of a summary of the evidence presentedBail for the provisional liberty of the accused by the prosecution.regardless of the crime charged should beallowed independently of the merits of the Thus, the order granting or refusing bail mustcharge, provided his continued incarceration is contain a summary of the evidence for theclearly shown to be injurious to his health or to prosecution followed by the conclusion onendanger 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 anBail as a Matter of Right accused who is charged with a crime punishable by reclusion perpetua is convictedAll persons, except those charged with by the trial court and sentenced to suffer suchoffenses punishable by reclusion perpetua a penalty, bail is neither a matter of right on thewhen evidence of guilt is strong, shall, before part of the accused nor of discretion on the partconviction, be bailable by sufficient sureties, or of the court. In such a situation, the court wouldbe released on recognizance as may be have ruled that the accused's guilt has beenprovided by law. The right to bail shall not be proven beyond reasonable doubt. Bail must notimpaired even when the privilege of the writ of then be granted to the accused during thehabeas corpus is suspended. pendency of his appeal from the judgment of conviction [People v. Nitcha, G.R. No. 113517Excessive bail shall not be required [Section (1995)].13, Article III, 1987 Constitution].
Page 186 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWIn extradition proceedings show that the guilt of the accused is strongExtradition courts do not render judgements of for the purpose of enabling the court toconviction 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 isperpetua [US Government v. Judge Puruganan strong based on the summary of evidenceand 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 ofthe grant of bail to an extradite, however, there the bail bond [Section 19, Rule 114, Rulesis no provision prohibiting him or her from filing of Court]a motion for bail, a right to due process underthe Constitution [Government of Hong Kong 3. Presumption of InnocenceSAR v. Olalia, G.R. No. 153675 (2007)]. The requirement of proof beyond reasonableStandards 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 circ*mstances 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 dutiesDiscretion is with the court called upon to rule cannot by itself prevail over the presumption ofon the question of bail. We must stress, innocence of the accused. But where it is nothowever, that where conditions imposed upon the sole basis for conviction, the presumptiona defendant seeking bail would amount to a of regularity of performance of official functionsrefusal thereof and render nugatory the may prevail over the constitutional presumptionconstitutional 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 invokeDuties of a trial judge in case an the right to be presumed innocent which right isapplication for bail is filed [Cortes v. Catral, available only to an individual who is anA.M. No. RTJ-97-1387 (1997)]: accused in a criminal case [Feeder1. 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 the2. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWpresumption of innocence should tilt the decisive legal assistance, and not simply abalance 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 issituation where: guaranteed by no less than the Constitutiona. 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 accusedb. The evidence, facts, and circ*mstances 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 hisProof Beyond Reasonable Doubt pre-assigned trial dates constitutes a patentProof beyond reasonable doubt does not mean denial of the constitutionally guaranteed right tosuch 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 ofproof which produces conviction in an Nevertheless, a party is not compelled to speakunprejudiced mind [Section 2, Rule 133, Rules if it chooses to be silent. If it avails itself of theof Court]. right to be heard, well and good; but if not, that is also its right. In the latter situation, however,In order that circ*mstantial evidence may it cannot later complain that, because it was notwarrant conviction, the following requisites heard, it was deprived of due processmust concur: [Stronghold Insurance Co., Inc. v. CA, G.R. No.1. There is more than once circ*mstance; 88050 (1992)].2. The facts from which the inferences arederived from are proven; and 5. Right to Counsel3. The combination of all the circ*mstances issuch 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 commission113804 (1998)]. of an offense shall have the right to be informed of his right to remain silent and to have competent and4. Right to be Heard independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he 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 the person cannot afford the services of counsel, he 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) AnyIt means the accused is amply accorded legal person arrested, detained or under custodialassistance extended by a counsel who investigation shall at all times be assisted bycommits himself to the cause of the defense counsel.and acts accordingly. It is an efficient and truly Page 188 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWIt 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 oncommits himself to the cause of the defense speedy trial in the Constitution. — No provision ofand acts accordingly. It is an efficient and truly law on speedy trial and no rule implementing thedecisive legal assistance, and not simply a same shall be interpreted as a bar to any charge ofperfunctory 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 thefundamental 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 sobefore 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. Militaryis 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 [AcebedoOne 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 counseldoes not commence only during trial. Every When right not availableperson under custody of the law enjoys the The right to speedy trial cannot be invokedright. Even a person under investigation for an where to sustain the same would result in aoffense has the right to have a competent and clear denial of due process to the prosecutionindependent counsel preferably of his own [Uy v. Hon. Adriano, supra].choice [Riano]. Rationale of right to speedy trialElements a. To prevent oppressive pre-triala. Court’s duty to inform the accused of right incarceration; to counsel before being arraigned; b. To minimize anxiety and concern of theb. Court must ask accused if he desires the accused; and services of counsel; c. To limit the possibility that the defense willc. 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 oned. 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 test6. 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 theProcedural 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 andprosecuted 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWIn case of the unjustified failure of the witness Conceptto comply, the court or judge issuing the The right to speedy disposition of cases is notsubpoena, upon proof of the service of such limited to the accused in criminal proceedingssubpoena and proof of his failure to attend, but extends to all parties in all cases, be it civilmay issue a warrant for his arrest [Section 8, or administrative in nature, as well as allRule 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 Witnessb. Right to Production of Other Evidence While the right to speedy trial is invoked againstc. Subpoena courts of law, the right to speedy disposition of cases may be invoked before quasi-judicial or10. Trial In Absentia administrative tribunals in proceedings that are adversarial and may result in possible criminalRequisites 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 andc. After arraignment. circ*mstances surrounding each case xxx. What the Constitution prohibits areConsequences of the Accused’s Failure unreasonable, arbitrary and oppressive delaysto 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 correspondingGeneral Rule: decision or resolution within the prescribeda. 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 delayb. During Trial for Identification because judges are allowed, upon motionCommon reason suggests that the prosecution or letter-requests, extensions of themust 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 Auditthe very person named or described in the Conducted in MTC’s of Bayombong andcomplaint or information because rights during Solano and MCTC, Aritao-Sta. Fe, Nuevathe 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 ofc. Promulgation of Sentence cases. It is the duty of the judge to recommend to the Supreme Court the immediate appointment of a branch clerk ofN. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW 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. ExclusionsDismissal based on violation of the right An accused may be compelled to beto speedy disposition of cases photographed or measured, his garments mayA 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 constitutionalcases [Coscolluela v. Sandiganbayan, supra]. several procedures performed on the accused such as pregnancy tests for women accused ofO. 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, herThe right against self-incrimination secures to orifice being too small for his penis.a witness, whether she/he is a party or not, theright 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 andIt prescribes an “option of refusal to answer its results are now similarly acceptable [Agustinincrimination 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 aThe right against self-incrimination proscribes prosecution for falsification is not allowedthe use of physical or moral compulsion to [Beltran v. Samson, G.R. No. 32025extort 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 herright are: garments and shoes and be photographed1. To be exempt from being a witness against [People v. Otadura, G.R. No. L-2154 himself; and (1950)]; compelled to show her body for2. 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 allowedThe right applies only to testimonial compulsionand production of documents, papers, and When to invokechattels in court, except when books of account 1. This right may only be invoked for thatare to be examined in the exercise of police specific incriminating question and cannotpower 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 tob. Governmental proceedings disregard a subpoena and decline to testify altogether. The witness must still take the Page 191 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW 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 ofAccused 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 hisself- executing. It must be claimed. If not political beliefs and aspirations.claimed by or in behalf of the witness, theprotection does not come into play. It follows No involuntary servitude in any form shall existthat 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 theappropriate time [People v. Ayson, supra]. 1. Requisitesc. Effect of Denial of Privilege a. First jeopardy attached prior to the second1. 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 thereof2. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWc. 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 theThen, a subsequent complaint or following instances, pursuant to Section 7, Ruleinformation was filed containing a crime 117, Rules of Court:that is:a. The same offense Waiver of right against double jeopardyb. An attempt to commit the said offense; The right against double jeopardy is deemedc. 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 ae. 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 theApplication 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 toTermination of Jeopardy plea double jeopardy.a. By acquittalb. By final conviction Q. Right against Involuntaryc. By dismissal without express consent of the accused. Servituded. 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 hisG.R. No. L-45129 (1987)] political beliefs and aspirations.
No involuntary servitude in any form shall exista. Prosecution for the same offense except as a punishment for a crime whereof the1. 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 any5. 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, orb. Prosecution for the same act threat of abuse or harm, or coercion including1. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWthreatened abuse of the legal process [R.A. No. R. Right against Excessive9208, as amended by R.A. No. 10364]. Fines, and Cruel andSlavery and involuntary servitude, together Inhuman Punishmentswith their corollary peonage, all denote “acondition 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. Neithersupra]. shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death2. 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, orb. 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 oppressived. 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 ofe. 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 unusualThe accused being political prisoners subject to punishment. Unusual punishment is notthe civil jurisdiction of ordinary courts of justice, prohibited, especially if it makes the penaltyif they are to be prosecuted at all, the army has less severe.no jurisdiction, nor power, nor authority, from alllegal standpoints, to continue holding them in The imposition of the penalty of death is herebyrestraint. 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 Deathany 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW 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 circ*mstances 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. Judge3. 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 AttainderFor a death penalty bill to be valid, Section19(1) does not require that there be a positive 1. Ex Post Facto Lawsmanifestation in the form of higher incidence ofcrime first perceived and statistically proven. DefinitionNeither does the said provision require that the An ex post facto law is one that would make adeath penalty be resorted to as a last recourse previous act criminal although it was not so atwhen 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 postS. 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 criminalAny civil obligation arising from a contract.It matters.includes even debts obtained through fraudsince 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 greaterA specific sum levied upon any person than when it was committed.belonging to a certain class without regard to ● Changes the punishment and inflicts aproperty 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 andDebts receives less or different testimony than theIn 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 theimprisoned for estafa for failing to render defendant [Mekin v. Wolfe, G.R. No. 1251promised service to the injured in exchange for (1903)].the latter’s retrieval of the former’s cedula. The ● Assumes to regulate civil rights andCourt held that the imprisonment was correct remedies only but in effect imposes asince it was for estafa, and not involuntary penalty or deprivation of a right which whenservitude or imprisonment for debt. done was lawful. ● Deprives a person accused of a crime ofNo person may be imprisoned for debt in virtue some lawful protection of a formerof a civil proceeding [Makapagal v. Santamaria, conviction or acquittal, or a proclamation ofG.R. No. L-34616 (1930)]. Page 195 of 412 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW 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 factoCharacteristics of an ex-post facto law features.(CReP)a. Refer to criminal matters Therefore, if a statute is a bill of attainder, it isb. Retroactive in its application also an ex post facto law. But if it is not an exc. 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 ofThe 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 whichaffect or regulate civil or private rights [Republic Examples of statutes which are NOT billsv. Fernandez, G.R. No. L-9141 (1956)]. of attainder ● R.A. No. 9335, which provides for theExamples: 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 aRefers to a legislative act which inflicts violation of P.D. No. 1829, Section 20 of thepunishment without trial. The essence of a bill Cybercrime Law necessarily incorporatesof attainder is the substitution of legislative fiat elements of the offense which are definedfor a judicial determination of guilt. There is a therein. The act of non- compliance, for it tobill of attainder when a statute applies to either be punishable, must still be donenamed individuals or to easily ascertainable “knowingly or willfully.” There must still beindividuals, and such statute inflicts a judicial declaration of guilt, duringpunishment unto them without trial. which, defense and justifications for non- compliance may be raised [Disini v. Sec. ofElements Justice, supra].a. There must be a lawb. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAW 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 whenU. 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 inSuspension 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 corpus1. Writ of Habeas Corpus being a remedy for a constitutional right, courts must apply a conscientious and deliberate levelDefinition of scrutiny so that the substantive right to libertyA writ issued by a court directed to a person will not be further curtailed in the labyrinth ofdetaining another, commanding him to produce other processes [In the Matter of the Petition forthe 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, andto receive whatever the court or judge awarding Not only physical restraint but any restraint onthe writ shall consider in his behalf [Sombong freedom of action is sufficient i.e. (1) curtailedv. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWabode because prior approval of respondent is Scoperequired in case petitioner wants to change The Amparo Rule was intended to address theplace of residence, (3) abridged freedom of intractable problem of “extralegal killings” andspeech 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 thesepetitioner is required to report regularly to instances or to threats thereof. If what isrespondents or their reps [Moncupa v. Enrile, involved is the issue of child custody and theG.R. No. L-63345 (1986)]. exercise of parental rights over a child, who, for all intents and purposes, has been legallyThis Court has held that a restrictive custody considered a ward of the State, the Amparoand 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 orrestraint of liberty [Ampatuan v. Macaraig, G.R. a. Extralegal KillingsNo. 182497 (2010)]. Killings committed without due process of law (i.e. without legal safeguards of judicialRestrictive 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 thatwould call for the grant of the remedy prayed b. Enforced Disappearancefor. It is a permissible precautionary measureto assure the PNP authorities that the police Elementsofficers 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 theaddressed 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 amparoTest for valid suspension of the privilege of petition; and,the writ 4. That the intention for such refusal is toArbitrariness, not correctness. remove subject person from the protection of the law for a prolonged period of time2. 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 andConcept enforcement of constitutional rights, xxx. Such rulesAn amparo proceeding does not determine shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniformguilt nor pinpoint criminal culpability for the for all courts of the same grade, and shall notdisappearance [threats thereof or extrajudicial diminish, increase, or modify substantive rights.killings]; it determines responsibility, or at leastaccountability for purposes of imposing theappropriate remedies to address the Petition for Writdisappearance [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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWb. Contents wasThe petition shall allege the following: committed or1. The personal circ*mstances of the any of its petitioner elements2. The name and personal circ*mstances 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 justice3. 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 circ*mstances detailed in supporting their justices affidavits 3. Any RTC4. The investigation conducted, if any, of the place specifying the names, personal where the circ*mstances, 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 or5. 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 omission6. The relief prayed for. d. ReturnThe petition may include a general prayer for Within 72 hours after service of the writ, theother just and equitable reliefs [Section 5, A.M. respondent shall file a verified written returnNo. 07-9-12-SC]. together with supporting affidavits which shall, among other things, contain his defenses. Ac. 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 UP Law Bar Operations Commission 2022 CONSTITUTIONAL LAW 2 POLITICAL LAWg. Defense ecology by an unlawful act or omission of a1. Private individual — Ordinary diligence public official or employee, or private individual2. 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 ofimpleading a superior of the accused (subject Requisitesof the writ) to be made responsible for the a. There is an actual or threatened violation ofcrimes committed by his subordinates — by the constitutional right to a balanced andfailing to prevent or punish the said accused. healthful ecology;As regards the relief granted, the Court held b. The actual or threatened violation arisesthat the production order under the Amparo from an unlawful act or omission of a publicrule is different from a search warrant and may official or employee, or private individual orbe likened to the production of documents or entity; andthings under Rule 27.1, ROC [Secretary of c. The actual or threatened violation involvesNational 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 orSC] 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 theimage, privacy, honor, information, and A suit for the issuance of the writ of kalikasanfreedom of information of an individual, and to is a special civil action. The writ of kalikasan isprovide a forum to enforce one’s right to the extraordinary in nature and is issued not onlytruth and to informational privacy. when there is actual violation of the constitutional right to a balanced and healthfulThere must be a nexus between the right to ecology. Threat of violation through an unlawfulprivacy on the one hand, and right to life, liberty act is enough, whether the threat be committedand security on the other [Lee v. Ilagan, G.R. by a natural or juridical person, or a public orNo. 203254 (2014)]. private person or entity.
Right to Informational Privacy v.Legitimate State InterestThe determination of whether the privilege ofthe writ of habeas data, being an extraordinaryremedy, may be granted in this case entails adelicate balancing of the alleged intrusion uponthe private life of a person and the relevantstate interest involved [Gamboa v. Chan,supra].
Without an actionable entitlement in the firstplace to the right to informational privacy, ahabeas 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]
DefinitionRemedy against violation or threat of violationof constitutional right to a balance and healthful Page 200 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLICOFFICERSPOLITICAL 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 anda. Definition justice, and lead modest lives.It is the right, authority and duty, created andconferred by law, by which, for a given period The provision embodies the nature of a publiceither fixed by law or enduring at the pleasure office as a public trust, and not as a propertyof the creating power, an individual is invested right. It means that public office is awith some portion of the sovereign functions of responsibility.government, to be exercised by that individualfor the benefit of the public [Fernandez v. Sto. c. Elements of a Public OfficeTomas, G.R. No. 116418 (1995)]. 1. It must be created by the Constitution or by the legislature or created by aNature and Purpose municipality or other body throughThe 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 towhich is the common good or for the benefit of be discharged must be defined, directlythe public, and not for the profit, honor, or or impliedly, by the legislature orprivate interest of any person, family, or class through legislative authority;of persons. 4. The duties must be performed independently and without control of aThe nature of a public office is inconsistent with superior power, other than the law, unlesseither a property or contract right. It is they be those of an inferior or subordinateconceived 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 or1987 Constitution, Section 1, Article II. ThePhilippines 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, inparticular, is the foundation of the law on public While salary is a usual criterion for determiningaccountability. the nature of a position, it is not a necessary condition. The material factor was theA 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 anagency through which the will of the state is The delegation of a portion of the sovereignexpressed and enforced. Its officers therefore powers of government is the most importantare likewise agents entrusted with the element of a public office and distinguishes itresponsibility of discharging its functions. As from private employment or a contractsuch, there is no presumption that they are [Mechem].empowered to act, there must be a delegationof such authority, either express or implied. Inthe absence of a valid grant, they are devoid of Independent Performance of Dutiespower [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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWException: 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 departmentLegislature and which inferior or subordinate are concerned, the President's power of controloffice is placed under the general control of a may justify him to inactivate the functions of asuperior office or body. particular office, or certain laws may grant him the broad authority to carry out reorganizationd. Creation, Modification, Abolition measures [Buklod ng Kawaning EIIB v. Zamora, G.R. No. 142801-2 (2001)].1. CreationModes of Creation of Public Office: e. Characteristics1. By the Constitution;2. By statute/law; or 1. Public office is a public trust3. 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 ofprimarily a legislative function. holding a public office. A public office is not property within the sense of the constitutionalException: Where the office is created by the guaranties of due process of law, but is a publicConstitution itself. trust or agency. Congress may amend at any time the law to change or even withdraw theThe 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 toThe delegation is limited by the Constitution property in a limited context and due processand the relevant statute. Hence, the president may be invoked when the dispute concernscannot deprive courts of jurisdiction by one‘s constitutional right to security of tenurerequiring administrative appeals prior to court [Lumiqued v. Exevea, G.R. No. 117565action when the statute does not provide for (1997)].that limitation. This is because the power toapportion jurisdiction is exclusively within the 3. Public office is not a contractpowers of Congress [UST v. Board of Tax An office also differs from a contract, for, as hasAppeals, G.R. No. 5701 (1953)]. been said, “the latter from its nature is necessarily limited in its duration and specific2. Modification/Abolition in its objects. The terms agreed upon define the rights and obligations of both parties, andGeneral Rule: The power to create an office neither may depart from them without theincludes the power to modify or abolish it. assent of the other” [Mechem].(Hence, the power to modify or abolish anoffice is also primarily legislative) 4. Public office is personal Public office being personal, the death of aException: Where the Constitution prohibits public officer terminates his right to occupy thesuch modification/abolition. contested office and extinguishes his counterclaim for damages. His widow and/orAbolishing an office also abolishes unexpired heirs cannot be substituted in the counterclaimterm: 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 courtcarries with it the power to abolish it [Ocampov. Secretary of Justice, G.R. No. 7910 (1955)].
The President has power to reorganize theExecutive. The President’s power of controlgives him authority to deactivate the functions Page 203 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW 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 willsovereignty. of the contractingSovereignty is parties Under the Revised Penal Codeomnipresent 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, byTo carry out the Obligations imposed direct provision of the law, popular election or appointment by competent authority, shall take partsovereign as well as only upon the in the performance of public functions in thegovernmental persons who Government of the Philippine Islands, or shallfunctions affecting entered into the perform in said Government or in any of its brancheseven persons not contract. public duties as an employee, agent or subordinatebound by the official, of any rank or class, shall be deemed to becontract. a public officer. Subject matter Under R.A. No. 3019 (Anti-Graft andA public office Limited duration andembraces 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, theduties connected obligations of the government-owned and government- controlledtherewith are parties, and neither corporations, and all other instrumentalities orgenerally continuing may depart agencies of the Republic of the Philippines andand 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 receivingDuties are generally Duties are very compensation, even nominal, from thecontinuing and specific to the government as defined in the precedingpermanent. contract. subparagraph. Where duties are definedThe law Contract b. Public Officer vs. Public Employee RAC, SECTION 2(15). “Employee” when used with2. 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 ora. Definitions instrumentalities.A public officer is an individual vested withsome portion of the sovereign functions of the Public employment is broader than publicgovernment 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 aUnder the Revised Administrative Code public office. It is created by contract rather(RAC) than by force of law.RAC, SECTION 2(14). “Officer” as distinguishedfrom “clerk” or “employee”, refers to a person whose An "officer" is distinguished from anduties, 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, beingperformance of the functions of the government. required to take an official oath. Moreover, aWhen used with reference to a person havingauthority to do a particular act or perform a particular public officer must be invested by law with afunction in the exercise of governmental power, portion of the sovereignty of the State, and
Page 204 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWauthorized to exercise functions either of an Classifications [Cruz]executive, legislative, or judicial character. Creation ConstitutionalHowever, the fact that the position is asubordinate one and that its holder may be Statutoryaccountable to a superior does not prevent itfrom being an office [De Leon]. Public Body Served National
An officer is distinguished from a mere Localemployee in the sense that:1. His position has greater importance, Department of Legislative dignity, and independence; government to2. He is required to take an official oath, and which their Executive to give an official bond; functions pertain3. He has greater liability to account for Judicial misfeasance or nonfeasance in office: and4. His tenure of office is usually different from Nature of Functions Civil that of an ordinary employee [Suarez] Militaryc. Who are not Public OfficersGenerally, persons holding offices or Exercise of Discretionaryemployment which are not public offices, i.e. Judgment orthose missing one of the essential elements, Discretion Ministerialsupra. Legality of Title to De JureExamples: Office1. 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 OfficeRationale: There was no public office in thiscase. The Court further noted that the a. Overview of Modesappointment by the government was only doneto ensure the faithful performance of the 1. Appointmentguard’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 exercise2. 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 RailroadCompany was owned by the Government, its 2. Election The choice or selection of candidates to publicfunds were private funds because the Court office by popular vote through the use of thefound that it was not imbued with governmental ballot [Rulloda v. COMELEC, G.R. No. 154198powers [Tanchoco v. GSIS, supra]. (2003)].
The act of selecting or choosing a person by popular vote to occupy the office.
Page 205 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW 3. Designation of the appointment intended (i.e., whether theThe mere imposition of new or additional duties appointment is permanent or temporary).upon an officer to be performed by him in aspecial manner. It presupposes that the officer Generally: Appointment is generally ais already in the service by virtue of an earlier political question involving considerations ofappointment, performing other functions. wisdom which only the appointing authority can decide. 4. Other Modes Exception: Appointments requiringb. Appointment confirmation by the Commission on Appointments. In such cases, the Commission on Appointments may review the wisdom of the1. Nature appointment and has the power to refuse to concur with it even if the President's choiceAppointment is a Discretionary Power possessed all the qualifications prescribed byAppointment is an essentially discretionary law [Luego v. CSC, supra].power and must be performed by the officer inwhich it is vested according to his best lights, Power of CSC to Recall Appointmentsthe only condition being that the appointee Does NOT Include Control of Discretionshould possess the qualifications required by The CSC authority to recall an appointmentlaw. If he does, then the appointment cannot be which has been initially approved when it isfaulted on the ground that there are others shown that the same was issued in disregardbetter 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 anotherAdministrators 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. Theirposition most favorably determines who canbest fulfill the functions of a vacated office. The Promotion of the “Next-in-Rank” isThere should always be full recognition of the NOT Mandatorywide scope of a discretionary authority, unless While there is a preference for the next- in-rankthe 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 notcirc*mstances [Reyes v. Abeleda, G.R. No. impose a “rigid or mechanistic formula” that25491 (1968)]. requires the appointing power to select the more senior officer. Unless the law speaks inRequisites 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 appoint2. 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 must3. 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 theonly in the choice of the person who is to be appointee is certified to be qualified andappointed but also in the nature and character
Page 206 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWeligible” [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 intheir 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 independentSecretary” [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 onbe mere advice. It is persuasive in character, Human Rights, Section 18(10), Article XIII).but is not binding or obligatory upon the personto whom it is made [Bermudez v. Torres, G.R. Note: The power to appoint may be granted byNo. 131429 (1999)]. law to officials exercising executive functions. This is expressly sanctioned by the provisionNote: The rule is different with respect to which holds that “Congress may, by law, vestrecommendations made by officers over whom the appointment of other officers lower in rankthe 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, ArticleGovernor of a Province to the Secretary of the VII, 1987 Constitution].Department of Budget and Management in theappointment of a Provincial Budget Officer. In Congress cannot vest such power in officialsthe said example, the recommendation by the not mentioned in the above provision, such asGovernor 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 LocalGeneral Rule: With regard to the power of Government Code is separately sanctioned inappointment, courts will act with restraint. the power of Congress to “provide for the qualifications, election, appointment andHence, mandamus will not lie to require the removal, term, salaries, powers and functionsappointment of a particular applicant or and duties of local officials, and all othernominee. matters relating to the organization and operation of the local units” [Section 3, ArticleExceptions: 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, or2. 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 byFunction Congress, except those resulting (1) from the need of securing the concurrence of theGeneral Rule: Appointment to office is Commission on Appointments and (2) from theintrinsically an executive act involving the exercise of the limited legislative power toexercise of discretion [Concepcion v. Paredes, prescribe the qualifications to a givenG.R. 17539 (1921)]. appointive office [Manalang v. Quitoriano, G.R. No. 6898 (1954)]. Page 207 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWLegislative Appointments The first consideration of every democraticLegislative appointments are repugnant to the polity is to give effect to the expressed will ofConstitution [Pineda v. Claudio, G.R. No. the majority.29661 (1967)]. Characteristics of an Elective OfficialEffectively legislative appointments are 1. Occupy their office by virtue of the mandatealso prohibited: “When Congress clothes the of the electoratePresident with the power to appoint an officer, 2. Definite termit (Congress) cannot at the same time limit the 3. May be removed only upon stringentchoice of the President to only one candidate. opinions[...] when the qualifications prescribed by 4. Expressly allowed to take part in politicalCongress can only be met by one individual, and electoral activities [De Leon]such enactment effectively eliminates thediscretion of the appointing power to choose d. Delegationand constitutes an irregular restriction on thepower of appointment” [Flores v. Drilon, G.R. DefinitionNo. 104732 (1993)]. In this case, the law It is the imposition of additional duties, usuallyassailed provided that “for the first year of its by law, on a person already in public officeoperations from the effectivity of this Act, the [Binamira v. Garrucho, G.R. No. 92008 (1990)].mayor of the City of Olongapo shall beappointed [by the President] as the chairman Designation may also be loosely defined as anand chief executive officer of the Subic appointment because it likewise involves theAuthority.” naming of a particular person to a specified public office. That is the commonNote: This is not to be confused with the power understanding of the term. However, where theof Congress to appoint its own staff and person is merely designated and notofficials [Flores v. Drilon, supra]. appointed, the implication is that he shall hold the office only in a temporary capacity and mayAppointment Under Civil Service be replaced at will by the appointing authority.Qualification Standard In this sense, the designation is consideredA qualification standard expresses the only an acting or temporary appointment, whichminimum requirements for a class of positions does not confer security of tenure on thein terms of education, training and experience, person named.civil service eligibility, physical fitness and otherqualities required for successful performance Nature[De Leon]. An employee who is designated in an acting capacity is not entitled to the difference inc. Election salary between his regular position and the higher position to which he is designated, in theDefinition absence of any authority to authorize theElection 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. 122197period and to whom they entrust for the time (1998)].being the exercise of the powers of thegovernment [Garchitorena v. Crescini, G.R. Appointment vs. DesignationNo. L-14514 (1918)]. Appointment DesignationNature Definition Appointing Imposition ofIn an election, an officer occupies the office by authority additionalvirtue of the mandate of the electorate. They selects an duties uponare elected for a definite term and may be individual who existing office.removed therefrom only upon stringent will occupy aconditions [Farinas v. Executive Secretary, certain publicG.R. No. 147387 (2003)]. office.
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As to Executive, Legislative,nature Irrevocable revocable
As to Selection of Mereeffect 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 Implieseffectivity permanency temporariness
Extent of Comprehensi LimitedPower ve
Security Yes. No. Theof Tenure designation may be revoked at will. [Binamira v. Garucho, G.R. No. 92008 (1990)]
Abandon- Yes. A public No. Whilement of officer who assuming thePrior later accepts designatedOffice 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 ModesA person may also acquire title to public officethrough 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).
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II. KINDS OF APPOINTMENT Security Yes. No. of Appointment1. As to term Tenure is revocable at will and Permanent Temporary without the Appointment Appointment necessity of just cause orEligibility 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 totion 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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWWhen 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 rankCommission on Elections, or (c) Commission of colonel or naval captain;on Audit be appointed or designated in a e. Other officers whose appointments aretemporary 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 and1(2), Article IX-D, 1987 Constitution]. Bar Council ii. The Chairman and Commissioners ofPresidential Appointments the Civil Service CommissionThe President shall nominate and, with the iii. The Chairman and Commissioners ofconsent of the Commission on Appointments, the COMELECappoint the heads of the executive iv. The Chairman and Commissioners ofdepartments, ambassadors, other public the Commission on Auditministers and consuls, or officers of the armed v. Members of the Regionalforces from the rank of colonel or naval captain, Consultative Commissionand other officers whose appointments arevested in him in this Constitution. He shall also 2nd Group: All other officers of theappoint all other officers of the Government Government whose appointments are notwhose appointments are not otherwise otherwise provided for by law.provided for by law, and those whom he maybe authorized by law to appoint. The Congress 3rd Group: Officers whom the President maymay, by law, vest the appointment of other be authorized by law to appointofficers lower in rank in the President alone, in a. Examples:the courts, or in the heads of departments, i. Heads of GOCCsagencies, commissions, or boards. ii. Undersecretaries iii. Heads of bureaus and officesThe President shall have the power to makeappointments during the recess of the 4th Group: Officers lower in rank whoseCongress, whether voluntary or compulsory, appointments the Congress may by law vest inbut such appointments shall be effective only the President alone.until after disapproval by the Commission onAppointments or until the next adjournment of The list of appointments requiring confirmationthe Congress [Section 16, Article VII, 1987 is exclusive. Congress cannot, by law, requireConstitution]. confirmation by the CA for a public office created by statute. This would beFour (4) groups of officers whom the unconstitutional as it expands the powers of thePresident shall appoint: CA [Calderon v. Carale, G.R. No. 916361. 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 CA2. 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 officers3. those whom the President may be enumerated under whose authorized by law to appoint Section 16, Article VII appointments are4. 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 the1st Group: Specifically enumerated under 2. Ambassadors; President may beSection 16, Article VII of the Constitution 3. Other public authorized by lawa. Heads of the executive departments; Page 211 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW
ministers and to appoint; 2. Regular or Ad Interim consuls; 3. Appointments Appointment4. Officers of the explicitly armed forces from exempted from Regular Ad Interim the rank of colonel the confirmation Appointment Appointment or naval captain; requirement under5. 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 thePower to Appoint as Presidential CA; orPrerogative b. If bypass-The power to appoint is the prerogative of the ed by the CAPresident, except in those instances when the upon the nextConstitution provides otherwise. Usurpation of adjournmentthis fundamentally Executive power by the of CongressLegislative and Judicial branches violates thesystem of separation of powers that inheres in a. Ad Interim Appointment andour democratic republican government [Rufino Appointment in an Acting Capacityv. Endriga, G.R. No. 139554 (2006)].However, the grant of power to appoint to the Natureheads of agencies, commissions, or boards is An ad interim appointment is a permanenta matter of legislative grace. Congress has the appointment because it takes effectdiscretion to grant to, or withhold from, the immediately and can no longer be withdrawnheads of agencies, commissions, or boards, by the President once the appointee hasthe power to appoint lower-ranked officers. If it qualified into office. The Constitution itselfso grants, Congress may impose certain makes an ad interim appointment permanent inconditions for the exercise of legislative character by making it effective untildelegation, like requiring the recommendation disapproved by the Commission onof subordinate officers or the concurrence of Appointments or until the next adjournment ofthe 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 theof lower rank than those vested by law with the effectivity of an ad interim appointment, andpower to appoint. thus an ad interim appointment takes effect immediately. The appointee can at once
Page 212 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWassume office and exercise, as a de jure Exception: Temporary appointments toofficer, 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, anappointment or designation in a temporary or This provision applies only to presidentialacting capacity can be withdrawn or revoked at appointments. There is no law that prohibitsthe pleasure of the appointing power. A local executive officials from makingtemporary or acting appointee does not enjoy appointments during the last days of theirany security of tenure, no matter how briefly. tenure [De Rama v. CA, G.R. No. 131136This is the kind of appointment that the (2001)].Constitution prohibits the President frommaking to the three independent constitutional The prohibition does not apply to Members ofcommissions, 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 theCOA cannot be reappointed. But a by-passedappointee, or one whose appointment was notacted upon the merits by the CA, may beappointed again by the President, becausefailure by the CA to confirm an ad interimappointment is not disapproval.
Renewal of by-passed appointment“A by-passed appointment is one that has notbeen finally acted upon on the merits by theCommission on Appointments at the close ofthe session of Congress. There is no finaldecision by the Commission on Appointmentsto give or withhold its consent to theappointment as required by the Constitution.Absent such decision, the President is free torenew the ad interim appointment of a by-passed appointee” [Matibag v. Benipayo,supra].
Classification of appointments into regular andad interim can be used only when referring tothe four (4) categories of appointments madeby the President of the Philippines in the firstsentence of Section 16, Article VIII of theConstitution.
3. Midnight AppointmentsGeneral Rule: A President or Acting Presidentshall not make appointments two (2) monthsimmediately before the next presidentialelections and up to the end of his term
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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, theIt is the presence of circ*mstances and Members of the Cabinet, and the deputiesqualities which make an individual ineligible or assistants shall not, unless otherwisefrom holding a public office. Lack of provided in the Constitution, hold any otherdisqualification 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 multiplea. Authority to Prescribe offices, as opposed to the prohibition in ArticleDisqualifications VII which is specific to high-ranking executiveThe 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 againstprescribed disqualifications do not violate the the President, Vice President, Cabinet andConstitution. deputies is absolute, covering public and private positions or employment.b. Restrictions1. 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. ExceptionsDisqualifications i. Unless otherwise provided in the Constitution (i.e. Secretary of Justice as ex officio memberDisqualifications 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 as2. 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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWc. Requirements for a Valid Ex Officio 8. No member of a ConstitutionalHolding [National Amnesty Commission v. Commission shall, during his tenure, holdCOA, supra] any other office or employment [Section 2, Article IX-A, 1987 Constitution].i. Holding of the ex officio office is provided bylaw The same disqualification applies to theii. 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 additionalcompensation 9. Members of the Constitutional Commissions must not have beenThe prohibition against dual or multiple offices candidates for any elective position in theheld by one official must be construed as to elections immediately preceding theirapply 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 be5. 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 fourth6. 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 other7. 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 privilegea. Exception: granted by the government or any subdivision, agency or instrumentalityDesignation to the Presidential Electoral thereof, including any GOCC or theirTribunal, Senate Electoral Tribunal or House of subsidiaries.Representatives Electoral Tribunal [Section 4. They shall strictly avoid conflict of4(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 during191618 (2010)] his tenure from appointing his spouse and relatives by consanguinity or affinity
Page 215 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW within the fourth civil degree [Section 13, 5. Disqualifications for Article VII, 1987 Constitution]. Appointive Officersb. For Members of Congress a. Under Administrative Code, Book V,1. They may not personally appear as counsel Section 58 — Limitations onbefore any court, election tribunal, or quasi- Appointmentjudicial body. 1. Being an Elective Official2. They shall not be financially interested,directly or indirectly, in any contract with, or in General Rule: No elective official shall beany franchise or special privilege granted by eligible for appointment or designation in anythe government or any subdivision, agency or capacity to any public office or position duringinstrumentality thereof, including any GOCC or his tenure.their subsidiaries during his term of office. Exception: The appointment will be valid if theFinancial interest – Any contract that involves elective official resigns from his elective seatfinancial investment or business out of which [De Leon].he derives profit or gain. However, borrowingmoney from a GOCC cannot be considered as 2. Losing Election in Immediatelysuch. Preceding YearThe 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 tospouse. However, it does not extend to his any office in the Government or anybrother or son unless used as a dummy [De government-owned or controlled corporationsLeon]. or in any of its subsidiaries.3. They shall not intervene in any government 3. Simultaneous Holdingoffice for his pecuniary benefit or where he maybe 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 orc. 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 law2. 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, the3. 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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWAs used in this Section, the word "relative" and a body [Cortes v. CSC, G.R. No. 200103members of the family referred to are those related (2014)].within the third-degree either or consanguinity or ofaffinity. Exception: The prohibition on nepotic(2) The following are exempted from the operation appointments in the Civil Service Law does notof 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 capacityand (d) members of the Armed Forces of the 2. TeachersPhilippines: Provided, however, That in each 3. Physiciansparticular instance full report of such appointmentshall be made to the Commission. 4. Member of the Armed Forces of the PhilippinesThe restriction mentioned in subsection (1) shall notbe applicable to the case of a member of any family 6. Disqualifications under thewho, after his or her appointment to any position inan office or bureau, contracts marriage with Local Government Codesomeone in the same office or bureau, in whichevent the employment or retention therein of bothhusband and wife may be allowed. a. Those Absolutely Disqualified The following persons are disqualified fromIn 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 ancontravention hereof shall be corrected by transfer, offense involving moral turpitude or forand pending such transfer, no promotion or salary an offense punishable by 1 year or moreincrease shall be allowed in favor of the relative orrelatives who are appointed in violation of these of imprisonment, within 2 years afterprovisions. serving sentence; 2. Removed from office as a result of anDefinition of Relative: One who is related administrative case;within the third degree of either consanguinity 3. Convicted by final judgment for violatingor 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 countryand local governments or any branch or or those who have acquired the right toinstrumentality thereof made in favor of the reside abroad and continue to avail of therelative of: same right after the effectivity of the1. Appointing authority; Local Government Code; or2. 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 AllegianceIn the last two cases, it is immaterial who the Dual citizenship Dual allegiance, onappointing 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 thean appointment is extended or issued in favor concurrent situation in which aof a relative of the chief of the bureau or office, application of the personor the person exercising immediate supervision different laws of two simultaneouslyover the appointee [CSC v. Dacoycoy, G.R. or more states, a owes, by someNo. 135805 (1999)]. person is positive act, loyalty simultaneously to two or moreThe restriction against nepotic appointments considered a states.extends to appointments made by a group of national by the saidindividuals acting as a body. The Court has states.deemed the appointment of a daughter of asitting Commissioner to a position in the CHR Involuntary Voluntaryas nepotic even if made by the Commission as Page 217 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWWhat the law prohibits is DUAL ALLEGIANCE. consent of the Congress, any present, emolument, office, or title of any kind from anyThe Constitutional Commission was not foreign government.concerned with dual citizens per se but withnaturalized citizens who maintain their Pensions or gratuities shall not be consideredallegiance to their countries of origin even as additional, double, or indirect compensationafter 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. AccommodationNo. 135083 (1999)]. No loan, guaranty, or other form of financial7. Other Prohibitions accommodation for any business purpose may be granted, directly or indirectly, by anya. Prohibition against Engaging in government-owned or controlled bank orPartisan Political Activities for Career financial institution to the President, the Vice- President, the Members of the Cabinet, theService 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 havemembers of the military are prohibited from controlling interest, during their tenure [Sectionengaging 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 incandidate elected or not, or to promote the Private Sectorcandidacy of a person to a public office. It isalso synonymous to electioneering or partisan General Rule: During their incumbency, publicpolitical campaign. officials and employees are prohibited to: 1. Own, control, manage, or acceptNote: Elective officials and cabinet members employment as officer, employee,who are holding political offices are not consultant, counsel, broker, agent, trusteeembraced in the prohibition [De Leon]. or nominee in any private enterprise regulated, supervised or licensed by theirb Prohibition against Acceptance of office unless expressly allowed by law. 2. Engage in the private practice of theirAny Present from Any Foreign State profession unless authorized by the Constitution or law, provided, that suchWhat is prohibited is the acceptance of a practice will not conflict or tend to conflictpresent 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 privateor personal gift from the head of a foreign Exception: A public official or employee CANgovernment. The prohibition is directed only engage in the practice of his or her professionagainst 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; andc. Prohibition against Receiving 2. the practice will not conflict, or tend toAdditional, Double, or Indirect conflict, with his or her official functions.Compensation
No elective or appointive public officer oremployee shall receive additional, double, orindirect compensation, unless specificallyauthorized by law, nor accept without the
Page 218 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWf. Prohibitions regarding Practice of Exception: If an employee is grantedProfession and Engagement in Private permission to engage, in outside activities, theBusiness 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 efficiency1. For elective officers under LGC of the officer or employeeAll governors, city, and municipality mayorsprohibited from practicing their professions or Exception to Exception: No permission isengaging in any occupation other than exercise necessary in the case of investments, made byof functions as local chief executives. an officer or employee, which do not involveSanggunian members may practice their any real or apparent conflict between hisprofessions or engage in any occupation private interests and public duties, or in anyexcept during session hours. However, those way influence him in the discharge of hiswho 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 theirwork hours only in occasions of emergency, subsidiaries [Section 5(4), Article XVI, 1987provided that officials concerned do not derive Constitution].monetary compensation [Section 90, LGC].
A civil service officer or employee whoseresponsibilities do not require his time to befully at the disposal of the government canengage in the private practice of law only withthe written permission of the head of thedepartment concerned [Catu v. Rellosa, A.C.No. 5738 (2008)].
2. For Appointive Officers under CivilService Rules
General Rule: No officer shall engage directlyin any private business, vocation, or professionor be connected with any commercial, credit,agricultural, or industrial undertaking without awritten permission from the head of thedepartment.
This prohibition will be absolute in the case ofthose officers and employees whose dutiesand responsibilities require that their entire timebe at the disposal of the Government.
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IV. POWERS AND DUTIES Doctrine of Necessary Implication All powers necessary for the effective exerciseOF 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 termOfficer 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 theGenerally, the powers are prescribed by the law has no effectConstitution or statutes. They only have those ● Where a public officer authorized by law topowers expressly granted to them. If broader perform his office at a particular place, hispowers are desirable, must be conferred by the action at a place not authorized by law isproper authority; cannot be merely assumed invalid (i.e. judge levying and sellingnor created by the courts [De Leon]. property outside its jurisdiction is invalid) [De Leon].Source of Powers of Public OfficerAuthority of Public Officers is derived from the Duration of authoritypeople themselves. The people, directly or Limited to the term during which he is by lawthrough representatives, create offices and invested with the rights and duties of the officeagencies as they deem desirable for the [De Leon]administration of the public function [De Leon]. Construction of grant of powersSovereignty resides in the people and all Express grants of power are subject to a strictgovernment 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 [DeThe right to be a public officer, then, or to Leon; Banco Filipino Savings & Mortgage Bankexercise the powers and authority of a public v. Monetary Board, G.R. 70054 (1991)].office, must find its source in some provision ofthe public law. 2. Classification of Powers andIn the absence of a valid grant, public officials Dutiesare devoid of power. A public official exercisespower, not rights. The Government itself is a. As to Naturemerely an agency through which the will of theState is expressed and enforced. Its officers 1. Ministerial – Official duty is ministerial whentherefore are likewise agents entrusted with the it is absolute, certain and imperative involvingresponsibility of discharging its functions. As merely execution of a specific duty arising fromsuch there is no presumption that they are fixed and designated facts. Where the officer orempowered to act. There must be a delegation official body has no judicial power or discretionof 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 ofnecessary implication [De Leon]. General Rule: Performance of duties of this nature may be properly delegated to another.
Page 220 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWExceptions 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 [DeMandamus 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 Subordinates2. Discretionary – Acts which necessarilyrequire the exercise of reason in the adaptation Power of Control – It implies the power of anof means to an end, and discretion in officer to manage, direct or govern, includingdetermining how or whether the act shall be the power to alter or modify or set aside what adone or the course pursued. When the law subordinate had done in the performance of hiscommits to any officer the duty of looking into duties and to substitute his judgment for that offacts and acting upon them, not in a way which the latter.it specifically directs, but after a discretion in itsnature, the function is discretionary (e.g. quasi- Power of Supervisionjudicial acts). Supervisory power is the power of mere oversight over an inferior body which does notGeneral Rule: A public officer cannot delegate include any restraining authority over suchhis discretionary duties to another. body. A supervising officer merely sees to it that the rules are followed, but he himself doesRationale: In cases where the execution of the not lay down such rules, nor does he have theoffice requires exercise of judgment or discretion to modify or replace them [De Leon].discretion by the officer, the presumption is thathe was chosen because he was deemed fit andcompetent to exercise such judgment. 3. Duties of Public Officers
Exception: The power to substitute another in a. General (Constitutional) dutieshis 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 anddiscretionary duty. justice; and to lead modest lives [Section 1, Article IX, 1987 Constitution]Exception to the Exception: When thediscretion is granted only as to the manner of 2. To submit a declaration under oath of hisits exercise and not the discretion to act or not assets, liabilities and net worth uponto 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 forofficers are generally construed as mandatory Members of Congress— All Members of thealthough the language may be permissive, Senate and the House of Representativeswhere they are for the benefit of the public or shall, upon assumption of office, make a fullindividuals. disclosure of their financial and business interest. They shall notify the House concerned2. Permissive – Statutory provisions define the of a potential conflict of interest that may arisetime and mode in which public officers will from the filing of a proposed legislation of whichdischarge their duties, and those which areobviously designed merely to secure order, Page 221 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWthey are authors [Section 12, Article VI, 1987 7. Act immediately on the public’s personalConstitution] transactions 8. All public officials and employees mustb. Duties of Public Officers as attend to anyone who wants to avail himselfTrustees 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 publica. Duty to obey the law 10. All public documents must be madeb. Duty to accept and continue in office accessible to, and readily available forc. Duty to accept burden of office inspection by, the public within reasonabled. 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 performhonestly, faithfully, and to the best of his ability,and to act primarily for the benefit of the people.An attempt to exercise those powers corruptlyfor some improper purpose is null and void.a. Duty to refrain from outside activities that interfere with the proper discharge of their dutiesb. 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 ofConduct and Ethical Standards forPublic Officials and Employees1. Act promptly on letters and requests2. 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 reports4. 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 expeditiously6. 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.
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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 Officershipa. 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 generalreputation 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 dutiesof the office are exercised: [Luna v. Rodriguez, De Jure OfficeG.R. No. L-12647 (1917)] An appointment or election of one to an office1. Without a known appointment or that has no legal existence gives no color of election, but under such circ*mstances 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 been2. 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 not3. 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 or4. 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 orThe De Facto Doctrine appointment.A person who, by the proper authority, isadmitted and sworn into office is deemed to be In all cases, it is necessary that the officer derightful in such office until, by judicial facto has some appearance of right to thedeclaration in a proper proceeding, his is office. The non-existence of any generalousted therefrom or his admission thereto is reputation or recognition as a public officer maydeclared void [De Leon]. be in itself enough to prevent the courts from giving such status to one who claims to hold theBasis of the De Facto Doctrine office.The doctrine springs from the fear of the chaosthat would result from multiple and repetitioussuits challenging every action taken by everyofficial whose claim to office could be open to
Page 223 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWActual Physical Possession in Good by the public; chosen to theFaith officeFor a person to be an officer de facto, it is 3. Actualessentially that he be in physical possession physical 4. Heand control of the office. possession of undertakes to the office in perform theSuch possession must be in good faith, under good faith duties of thecolor of right or title, and accompanied by the officefaithful exercise of the functions of the officeand discharge of its duties. Basis of Rests on Matter of right Authority reputationPossession alone makes the person a mereintruder or usurper who is not an officer at all How Direct Cannot befor any purpose and whose acts in the office Ousted proceeding of ousted evenare wholly void. quo warranto in a direct proceeding2. Officer De Jure vs. Officer De Validity of Valid as to Valid, subjectFacto Official the public to exceptions Acts until his title (e.g. actingOfficer 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 ofRequisites 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 circ*mstance 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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW Rationale: The doctrine is intended not for to office the protection of the public officer, but for the protection of the public and individualsValidity of Valid as to Acts are who get involved in the official acts ofActs 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, evensation 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 circ*mstance 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 aUnconstitutional Statute public prosecutor; or 2. A person claiming to be entitled to a publicA person appointed or elected in accordance office unlawfully held or exercised bywith a law later declared to be unconstitutional another.may be considered de facto, at least before thedeclaration 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 the4. Legal Effects of Acts of De cause of such ouster or the after the right of theFacto Officers [Monroy v. CA, petitioner to hold such office or position aroseG.R. No. L-23258 (1967)] [Section 11, Rule 66, Rules of Court]
Exception: When the government is the reala. 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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW6. Liability of De Facto Officers [DeLeon]A de facto officer generally has the samedegree of liability and accountability for officialacts as a de jure officer.
The de facto officer may be liable for allpenalties imposed by law for:a. usurping or unlawfully holding office;b. exercising the functions of public office without lawful right; orc. exercising functions of public office without being qualified according to law
A de facto officer cannot excuse responsibilityfor crimes committed in his official capacity byasserting his de facto status.
A de facto office is liable to account to the dejure officer whatever salary he received duringthe period of his wrongful tenure.
7. Right to Compensation of De FactoOfficer
General Rule: The office de facto is not entitledto compensation.
The rightful incumbent of a public office mayrecover from an officer de facto the salaryreceived by the latter during the time of hiswrongful tenure, even though the officer defacto entered into the office in good faith andunder color of title.
A de facto officer, not having a good title, takesthe salaries at his risk and must, therefore,account to the de jure officer for whateversalary he received during the period of hiswrongful tenure [Monroy v. CA, G.R. No. L-23258 (1967)].
Exception: In cases where there is no de jureofficer, a de facto officer, who, in good faith,has had possession of the office and hasdischarged the duties pertaining thereto, islegally entitled to the emoluments of the office,and may recover the salary, fees, and othercompensations attached to the office [CivilLiberties Union v. Executive Secretary, supra].
Page 226 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW
V. THE CIVIL SERVICE exercise control and supervision over the activities of the Commission; 7. Control, supervise and coordinate Civil1. Scope Service examinations. Any entity or official in government may be called upon by theThe Civil Service embraces all branches, Commission to assist in the preparationsubdivisions, instrumentalities and and conduct of said examinations includingagencies of the Government, including security, use of buildings and facilities asgovernment-owned and controlled well as personnel and transportation ofcorporations with original charters [Section examination materials which shall be2(1), Article IX-B, 1987 Constitution]. exempt from inspection regulations; 8. Prescribe all forms for Civil ServiceThe Civil Service Commission, as the central examinations, appointments, reports andpersonnel agency of the Government, shall such other forms as may be required byestablish a career service and adopt measures law, rules and regulations;to promote morale, efficiency, integrity, 9. Declare positions in the Civil Service asresponsiveness, 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 anda. Powers and Functions [Section 12, retention of qualified and competent workChapter 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 orThe Administrative Code enumerates the on appeal, including contestedfollowing powers and functions of the Civil appointments, and review decisions andService Commission: actions of its offices and of the agencies1. 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, or2. 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 Constitution4. 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 all5. 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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW 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 to17. 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 of18. 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 ServiceCommission 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 respondentI, Book V, Admin Code] shall be considered as having been under preventive suspension during the1. 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 mayThe Complaint may be filed directly with the include tests of fitness, in accordance withCSC by a private citizen against a government standards and guidelines set by theofficial or employee. Commission. 2. Promotion boards shall be formed to2. 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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW ● 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 Servicecertiorari only by the Supreme Court within 30days from receipt of decision by the aggrieved Characterized by:party. a. Entrance based on merit and fitness to be determined as far as practicable byNote: As to the power of the CSC to review an competitive examinations, or based onappointee’s qualifications: The only function of highly technical qualifications,the CSC is to review the appointment in the b. Opportunity for advancement to higherlight of the requirements of the Civil Service career positions, andLaw, and when it finds the appointee to be c. Security of tenure.qualified and all other legal requirements havebeen 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 appropriateIn TIDCORP v. CSC [G.R. No. 182249 (2013)], examination is required;the Court clarified that the CSC’s rulemaking b. Closed Career positions - Scientific, orpower, albeit constitutionally granted, is still highly technical in nature;limited to the implementation and c. Positions in the Career Executive Serviceinterpretation of the laws it is tasked to (CES), all of whom are appointed by theenforce. Thus, a law which exempts an agency President; namely:from rules on position classification cannot be i. Undersecretary and Assistantoverridden by a CSC Memorandum Circular. Secretary ii. Bureau Director and Assistant Bureau Director2. Limitations on the CSC’s iii. Regional Director and AssistantPowers 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 orThe authority of city or municipal mayors to controlled corporations, whetherexercise administrative supervision over performing governmental or proprietarycity/municipal civil registrars is not exclusive, functions, who do not fall under the non-but concurrent with the CSC [Mamiscal v. career service; andAbdullah, A.M. No. SCC-13-18-J (2015)]. g. Permanent laborers, whether skilled, semi- skilled, or unskilled.
Page 229 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWb. Non-Career Service [Section 9, Positions which fall under these 3 exceptionsChapter 2, Subtitle A, Title I, Book V, are also positions wherein there may beAdministrative 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; Serviceb. 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 collegeIncludes:a. Elective officials and their personal or 2. Professional, Technical and Scientific confidential staff; positionsb. 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 ofc. Chairmen and members of commissions college and boards with fixed terms of office, including their staff; 3. Career Executive Serviced. Contractual personnel; The CES covers presidential appointeese. Emergency and seasonal personnel only [Office of the Ombudsman v. Civil Service Commission, 528 SCRA 535Career Service Appointments — (2007)]. Officials occupying positions in theDetermination 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 otherand fitness, to be determined as far as officers of equivalent rank as may bepracticable 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 tenureExceptions: Positions which are: and may be removed anytime unless theya. 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 throughc. 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 levelNote: 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 Careerdetermining, primarily confidential or highly Executive Service Board.technical.
Page 230 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWPromotion 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. Administrative Code]. d. Approval and Recall of the1st 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 231ligible2. 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 bebe appointed if: entitled to the protection of the law against1. Immediate filling is urgently required by unjust removal, his appointment must receive public interest or the proper approval of the Commissioner of2. 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 anposition in the civil service whenever there is a essentially discretionary power and must becivil service eligible actually available for and performed by the officer in whom it is vestedready to accept appointment [Section 26, according to his best lights, the only conditionChapter 5, Subtitle A, Title I, Book V, being that the appointee shall possess theAdministrative Code]. qualifications required by law. If he does, then the appointment cannot be faulted on theQualification Standards [Section 22, ground that there are others better qualifiedChapter 5, Subtitle A, Title I, Book V, who should have been preferred. This is a political question involving considerations ofAdministrative Code]: wisdom which only the appointing authority can decide [Español v. CSC, G.R. No. 85479A qualification standard expresses the (1992)].minimum requirements for a class of positionsin 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 successfulperformance. f. RecallThe establishment, administration andmaintenance of qualification standards shall be Grounds [Section 20, Rule VI, IRR ofthe 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 thethe Wage and Position Classification Office. procedures/criteria provided by the agency’s Merit Promotion PlanTwo elements for a position to be 2. Failure to pass through the agency’scovered by the CES Selection/Promotion Board1. 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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWNote: The above grounds are available despite 6-month Probationary Periodinitial approval by the CSC of the appointment. Original appointees in the career service with permanent status of appointment, shallDistinguished 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 orof personnel in the civil service shall be known agency to another or from one organizationalas 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-careerreassignment, demotion, and separation. service to the career service and vice versa shall not be considered as a promotion but asAll personnel actions shall be in accordance reappointment.with such rules, standards, and regulations asmay 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 toI, 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 Administrative Code].Original The pendency of an administrative caseThe initial entry into the career or non-career against any employee shall not be a bar toservice. promotion.Appointment through Certification An employee who has been found guilty of anAn appointment through certification to a administrative offense and imposed the penaltyposition in the civil service, except as herein of demotion, suspension or fine shall beotherwise provided, shall be issued to a person disqualified for promotion for the same periodwho 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 andappropriate register of 232ligible, and who Other Human Resource Actions].meets all the other requirements of theposition. 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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWservice who occupy the next lower positions in b. All promotional appointments arethe occupational group under which the vacant simultaneously submitted to theposition is classified, qualified and with the Commission for approvalappropriate civil service eligibility shall be c. The Commission disapproves theconsidered 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 positionwho is deemed the most competent and The disapproval of the appointment of a personqualified, possesses an appropriate civil proposed to a higher position invalidates theservice eligibility, and meets the other promotion of those in the lower positions andconditions for promotion shall be promoted to automatically restores them to their formerthe higher position when it becomes vacant. positions. However, the affected persons areHowever, the appointing authority may entitled to payment of salaries for servicespromote an employee who is not next-in-rank actually rendered at a rate fixed in theirbut who possesses superior qualifications and promotional appointments.competence compared to a next-in-rankemployee who merely meets the minimum 3. Transferrequirements for the position. A transfer is a movement from one position to another which is of equivalent rank, level, orThe rule neither grants a vested right to the salary without break in service involving theholder nor imposes a ministerial duty on the issuance of an appointment.appointing authority to promote such person tothe next higher position. It shall not be considered disciplinary when made in the interest of public service, in whichA qualified next-in-rank employee shall have case, the employee concerned shall bethe right to appeal initially to the Secretaries or informed of the reasons therefor. If theheads of agencies or instrumentalities employee believes that there is no justificationincluding GOCCs with original charters, then to for the transfer, he may appeal his case to thethe Merit System Protection Board, and finally Commission.to the Civil Service Commission anappointment made in favor of another The transfer may be from one department oremployee if the appellant is not satisfied with agency to another or from one organizationalthe written special reason or reasons given by unit to another in the same department orthe appointing authority for such appointment; agency: Provided, however, That anyProvided, however, that the decision of the Civil movement from the non-career service to theService Commission may be reviewed on career service shall not be considered acertiorari 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 theappointed on a permanent basis to a position employee’s prior consent, it cannot be donepreviously determined to be next- in-rank and when the transfer is a preliminary step towardwho meets the requirements for appointment his removal, or a scheme to lure him away fromthereto as previously determined by the his permanent position, or when it is designedappointing authority and approved by the to indirectly terminate his service, or force hisCommission [Section 21 (b), Chapter 5, resignation. Such a transfer would in effectSubtitle A, Title I, Book V, Administrative circumvent the provision which safeguards theCode]. tenure of office of those who are in the Civil Service [Republic v. Pacheo, G.R. No. 178021Automatic Reversion Rule (2012)].
Requisites: 4. Reinstatementa. Series of promotions Any person who has been permanently appointed to a position in the career service Page 233 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWand who has, through no delinquency or If the employee believes that there is nomisconduct, been separated therefrom, may justification for the detail, he may appeal hisbe reinstated to a position in the same level for case to the Commission. Pending appeal, thewhich he is qualified [Section 26(4), Chapter 5, decision to detail the employee shall beSubtitle A, Title I, Book V, Administrative executory unless otherwise ordered by theCode]. Commission [Section 26(6), Chapter 5, Subtitle A, Title I, Book V, Administrative Code].Requisites for validitya. Any permanent appointee of a career No detail or reassignment whatever shall be service position made within three (3) months before anyb. 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/herconvicted felon to public office (a new salary only from his/her parentappointment must be given) department/agency. b. Detail without consent shall be allowed onlyHowever, 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 arelieved from all punitive consequences of the maximum of three (3) years. The extensioncriminal act. He need no longer apply for or renewal of the detail shall bereinstatement; he is restored to his office ipso discretionary on the part of the parentfacto upon the issuance of the clemency, and agency.he is entitled to back wages [Garcia v. d. Detail from one dept/ agency to anotherChairman of the Commission on Audit, G.R. shall be covered by an agreementNo. L-75025 (1993)]. manifesting the arrangement between the agency heads that it shall not result inReinstatement to Comparable Position reduction in rank, status, or salary of theThe restoration of a person, as a result of a employee, the duration of the detail, dutiesdecision, to a career position from which to be assigned to the employee andhe/she has been separated but subject position responsibilities of the parent agency andis already abolished, requiring the issuance of receiving agency [Section 13(b)(1-4), Rulean 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 sameNames of persons who have been appointed agency: Provided, That such reassignmentpermanently to positions in the career service shall not involve a reduction in rank, status orand 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 forreemployment shall be made [Section 26(5), Reassignment shall be governed by theChapter 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 theA detail is the movement of an employee from geographical location of the agency shallone agency to another without the issuance of be allowed only for a maximum period ofan 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 originaloccupying professional, technical and scientific post/assignment shall be automaticpositions. without the need of any order of
Page 234 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW 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 ofb. 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 toconstructive 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 ofreorganization, devolution, salary In cases where the demotion is voluntary or atstandardization, re-nationalization, the instance of the employee, he/she shall berecategorization, rationalization or similar allowed to receive the same step of the salaryevents, including the following: grade of the position where he/she voluntarilya. 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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWReclassification of position requires theissuance of an appointment but the same isministerial on the part of the appointingofficer/authority.
The appointment of an incumbent (permanentemployee) whose position was reclassifiedshall be approved/validated, regardless ofwhether he/she meets the qualificationrequirements of the position involved. Theincumbent of the reclassified position has avested right to the reclassified position buthe/she shall not be promoted unless he/shemeets the qualification requirements of the nexthigher position.
In LGUs, no reclassification shall be allowedexcept when the position is actually vacant[Section 11(h), Rule IV, 2017 Omnibus Rules].
Page 236 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW
Personnel Description/ Movement Contemplates Needs new Action Requisites Gap in Appointment Employment? Papers?
Original Undergoes 6 month YesAppointment 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 toPosition) 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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW
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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW
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 andA. Discipline rules or reasonable office regulations 13. Falsification of official documents1. Grounds 14. Frequent unauthorized absences or tardiness in reporting for duty, loafing orGrounds for Disciplinary Action under frequent unauthorized absences from dutythe Local Government Code: during regular office hours1. Disloyalty to the Republic of the Philippines 15. Habitual drunkenness2. Culpable violation of the Constitution 16. Gambling prohibited by law3. Dishonesty, oppression, misconduct in 17. Refusal to perform official duty or render office and neglect of duty overtime service4. 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 disability5. Abuse of authority due to immoral or vicious habits6. 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 government7. 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 business8. 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 partisanGrounds for Disciplinary Action Under political activities by one holdingthe Civil Service Law (P.D. No. 807) nonpolitical office1. Dishonesty 27. Conduct prejudicial to the best interest of2. Oppression the service3. Neglect of duty 28. Lobbying for personal interest or gain in4. Misconduct legislative halls and offices without5. Disgraceful and immoral conduct authority6. Being notoriously undesirable 29. Promoting the sale of tickets in behalf of7. Discourtesy in the course of official duties private enterprises that are not intended for8. Inefficiency and incompetence in the charitable or public welfare purposes and performance of official duties even in the latter cases if there is no prior9. 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 makes10. Conviction of a crime involving moral there is a breach of a false statement in turpitude Page 239 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW established rules are present [NPC v. CSC,duty or failure to any material fact or G.R. 152093 (2012)].perform the practicing orobligation, and there attempting to Simple neglect of duty is defined as theis gross negligence practice any failure of an employee to give proper attentionwhen a breach of deception or fraud to a required task or to discharge a duty due toduty is flagrant and in order to secure carelessness or indifference. On the otherpalpable his examination, hand, gross neglect of duty is characterized by[Presidential Anti- registration, want of even the slightest care, or by consciousGraft Commission appointment or indifference to the consequences, and in casesand the Office of the promotion. It should involving public officials, by flagrant andPresident v. Pleyto, be emphasized palpable breach of duty. It is the omission ofG.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 andMisconduct in Office pending appeal. It shall be executoryMisconduct in office refers to "any unlawful EXCEPT when the penalty is removal, inbehavior by a public officer in relation to the which case it shall be executory only afterduties 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 hasright to perform, acts performed improperly, appellate jurisdiction. Case may be filedand failure to act in the face of an affirmative directly to it; it may decide on the case orduty to act." In grave misconduct, as deputize a department or agency.distinguished from simple misconduct, theelements of corruption, clear intent to violate 3. Dismissal, Preventive Suspension,the law, or flagrant disregard of established rule Reinstatement and Back Salariesmust be manifest. Corruption as an element ofgrave misconduct consists in the act of an Dismissal - Offices may also become vacantofficial or employee who unlawfully or by the removal or dismissal of the incumbentwrongfully uses his station or character to from the service. It may be arbitrary or forprocure 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 termGrave misconduct consists in a government ● Implies that the office exists after the ousterofficial's deliberate violation of a rule of law or ● Another term used is dismissalstandard of behavior. It is regarded as gravewhen the elements of corruption, clear intent to What constitutes removalviolate the law, or flagrant disregard of A removal from office may be expressed or implied. Page 240 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW1. 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 to2. 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 appoint3. 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 of4. 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 Page 241 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW 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 isExercise of the power of removal authorized that removal be at pleasure,The power of removal when conferred may be removal may only be for causeabsolute or conditional. 7. Appointments based on merit and1. 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 sufficient2. 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 orPower of removal of the President dismissed except for cause as provided by lawThe power of removal of the President is and only after due process is accordedpossessed by him, as it is implied from: 1. Ground for suspension or removal –1. Power to appoint Removal or suspension shall be “for cause2. The power to remove is executive in nature provided by law.” [Section 1, Article VII, 1987 Constitution] 2. Substantive aspect3. 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 as4. 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 or5. “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 hisA presidential appointee who belongs to the official duties and must be restricted tocareer service of the Civil Service comes under something of a substantial naturethe direct disciplining authority of the President directly affecting the rights and interests of the publicExtent of the President’s power of c. The guarantee of security of tenure isremoval meant to prevent capricious exercise of1. 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 notice2. 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 and3. 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 collaterally4. Civil service officers – Only for cause [Section 2(3), Article IX-B, 1987 Guarantee extends to both those in career Constitution] and non-career positions5. 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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWthe constitutional and statutory guarantee of have the requisite qualifications for asecurity of tenure position cannot be appointed to it or, only as an exemption to the rule, may beGrounds for removal or suspension appointed to it merely in an acting capacityunder the Constitution in the absence of appropriate eligibles1. 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 temporary2. 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 prevent3. 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 pending4. 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 appointmentsAn appointment which is temporary in nature Prior notice and hearing are not requiredcan be terminated at pleasure of the appointing in the issuance of a preventivepower, without notice, and regardless of suspension ordergrounds or reasons. Settled is the rule that prior notice and hearing1. Appointee without requisite are not required in the issuance of a preventive qualifications - A person who does not Page 243 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWsuspension order [Carabeo v. CA, G.R. Nos. was so suspended or separated, even if it be178000 & 178003 (2009)]. subsequently determined that the cause for which he was suspended was insufficient.Grounds For Preventive Suspension ofPolice 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 laterCase) found guilty is proper because he had given ground for his suspension.The court shall immediately suspend theaccused from office for a period not exceeding b. Where removal or suspension unlawful –90 days from arraignment: Where an officer entitled to fixed annual salary1. 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 held2. 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 fromHowever, if it can be shown by evidence that his unpaid salary.the accused is harassing the complainantand/or witnesses, the court may order the What is material is not the nature of thepreventive suspension of the accused PNP appointment but the act of wrongful deprivationmember even if the charge is punishable by a of office. If the illegal dismissal is found to havepenalty lower than 6 years and 1 day. been made in bad faith by the superior officers, then they will be held PERSONALLYGeneral Rule: The period of preventive accountable for the back salaries of the illegallysuspension 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 maximumcase is due to the fault, negligence or petitions period of FIVE years. But an officer claimingof the respondent. back his office is not entitled to salary during the pendency of the case.The preventive suspension may be soonerlifted by the court in the exigency of the service c. Where suspended employee is laterupon recommendation of the chief, PNP. Such found innocent – Backpay may be allowed forcase shall be subject to continuous trial and the period when an employee is not allowed toshall be terminated within 90 days from work without his fault as when he wasarraignment of the accused. preventively suspended for alleged dishonesty and gross negligence but later found innocent3. Right to Reinstatement and Back of the charges causing his suspension.Salary To deny an innocent employee his back wagesThese are separate reliefs given to an illegally during his suspension would be tantamount todismissed official or employee [De Leon]: punishing him after his exoneration from his charges which caused his dismissal fromReinstatement – Restoration to a state or service.condition from which one had been removed orseparated. One who is reinstated assumes the A party’s claim for back wages may be theposition he had occupied prior to the dismissal appropriate subject of an ordinary civil actionBack salary – Form of relief that restores the NOT mandamus.income that was lost by reason of unlawfuldismissal d. Where employee not completely exonerated or reinstatement not the resulta. When removal or suspension lawful – of exoneration – if the employee is notOne who has been lawfully separated or completely exonerated of the charges, such assuspended from his office is NOT entitled to when the penalty of dismissal is reduced tocompensation for the period during which he Page 244 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWmere suspension or to a fine, he would not be An officer who has been lawfully suspendedentitled to the payment of back salaries from his office is not entitled to compensation for the period during which he was soe. Where another appointed to position of suspended, even through it be subsequentlyillegally dismissed or suspended employee determined that the cause for which he was– When a regular government employee was suspended was insufficient. The reason givenillegally suspended or dismissed, legally is "that salary and perquisites are the reward ofspeaking, his position never became vacant express or implied services, and thereforeand he is considered as not having left his cannot belong to one who could not lawfullyoffice perform such services."
f. Duty of plaintiff seeking reinstatement to An employee who is exonerated is not entitledprove his right to the office – he must to the payment of his salaries because hisestablish that when dispossessed, he was suspension, being authorized by law, cannotentitled to the office. In a quo warranto but unjustified. To be entitled to suchproceeding, the person suing must show that compensation, the employee must not only behe has a clear right to the office allegedly held found innocent of the charges but hisunlawfully by another. Absent such right, the suspension must likewise be unjustified.lack of qualification or eligibility of the supposedusurper is immaterial But through an employee is considered under preventive suspension during the pendency ofg. Right to reinstatement to former or at his appeal in the event he wins, his suspensionleast comparable position – when a is unjustified because what the law authorizesgovernment official or employee has been is preventive suspension for a period notillegally dismissed, and his reinstatement has exceeding 90 days. Beyond that period thelater been ordered, for all legal purposes he is suspension is illegal. Hence, the employeeconsidered 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 awardaccrue to him by virtue of the office he held should not exceed the equivalent of five years pay at the rate last received before theh. Duty to act with reasonable diligence in suspension was imposed [Gloria v. Court ofasserting right to reinstatement - it is not Appeals, G.R. No. 131012 (1999)].proper that the title to public office should besubjected to continued uncertainty, and the Back wages may be granted to those who havepeople’s interest requires that such right should been illegally dismissed and consequentlybe determined as speedily as practicable. The ordered reinstated, or to those acquitted of thelaws aid the vigilant and not those who slumber charge against them. A subsequent finding ofon their rights guilt in a separate case, even if based on the same facts cannot retroact to the time ofA petition for quo warranto and mandamus commission of the offense, only to the time ofaffecting 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 backsalaries and damages is also subject to the 4. Condonation doctrineprescriptive period of 1 year. Re-election Operates as Electoratei. Where pardon extended to convicted Condonation of a Previous Misconductemployee – A pardon, unless expressly Having been re-elected, an elective official isgrounded on the person’s innocence or unless no longer amenable to administrative sanctionsthe right to a public office is expressly restored for infractions allegedly committed during theby it, does NOT ipso facto restore a convicted preceding term because each term is separatefelon to public office. it merely restores his from other terms. Re-election to office operateseligibility for appointment to that office, and to as a condonation of the official’s previousregain his former post, he must re-apply and misconduct to the extent of cutting off the rightundergo the usual procedure required for new to remove him.appointment [De Leon]. Page 245 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWThis applies regardless of the date of filing of by impeachment [Section 2, Article XI, 1987the administrative complaint as long as the Constitution].wrongdoing was committed prior to the re-election date. It is an exclusive list. Congress cannot add toRe-election of a public official extinguishes only the list of impeachable offenses.the administrative but not the criminal or civilliability incurred during the previous term of These officers cannot be charged in court withoffice. Article 89 of Revised Penal Code offenses that have removal from office asenumerates the grounds for extinction of penalty. But after an official has beencriminal liability and the list does not include re- impeached, he can be charged with theelection to office [De Leon]. appropriate offense. Resignation by an impeachable official does not place him beyondHOWEVER, it is important to note that the the reach of impeachment proceedings; he canCondonation Doctrine has been still be impeached.ABANDONED in our jurisdiction. c. Grounds for ImpeachmentThat being said, this Court simply finds no legal a. Culpable violation of the Constitutionauthority to sustain the condonation doctrine in b. Treasonthis jurisdiction. As can be seen from this c. Briberydiscourse, it was a doctrine adopted from one d. Graft and corruptionclass of US rulings way back in 1959 and thus, e. Other high crimes, orout 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. ofcondonation doctrine that originated from the Constitutional Law 1 part of the reviewer forPascual, and affirmed in the cases following discussion.the same, such as Aguinaldo, Salalima, MayorGarcia, and Governor Garcia, Jr. which were all d. Effects of impeachmentrelied upon by the CA [Carpio-Morales v. Court a. Removal from office of the officialof Appeals, G.R. Nos. 217126-27 (2015)]. concerned b. Disqualification to hold any officeB. Impeachment c. Officer still Liable to prosecution, trial, and punishment if the impeachablea. Definition offense committed also constitutes aIt is the power of Congress to remove a public felony or crime.official for serious crimes or misconduct asprovided in the Constitution [Corona v. Senate, e. JudgmentG.R. No. 200242 (2012)]. Judgment in cases of impeachment shall not extend further than removal from office andPurpose: To protect the people from official disqualification to hold any office under thedelinquencies or malfeasances. It is primarily Republic of the Philippines, but the partyintended for the protection of the State, not for convicted shall nevertheless be liable andthe punishment of the offender. subject to prosecution, trial, and punishment, according to law [Section 3, Article XI, 1987b. 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 beremoved from office as provided by law, but not appointed
Page 246 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWQualifications: (Ombudsman and instrumentality, as well as of anyDeputies): government-owned or controlleda. 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 orc. Of recognized probity and independence duty required by law, ord. Member of the Philippine bar ii. To stop, prevent, and correct anye. 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, andDisqualifications 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 suchb. 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 disbursem*nt or usec. 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 recordsAppointment and documents.a. Ombudsman and deputies f. Publicize matters covered by itsb. By the president from a list of at least 6 investigation when circ*mstances 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, andc. Appointments do NOT require confirmation corruption in the Government and maked. All vacancies shall be filled within 3 months recommendations for their elimination and after they occur. the observance of high standards of ethicse. 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 bef. 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 take1. Functions testimony in any investigation or inquiry, including the power to examine and havea. 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 itsb. 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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW 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 prosecutor2. Judicial review in administrative and Ombudsman. Harmonization of the laws proceedings left the Special Prosecutor to continue to exercise powers of the former TanodbayanRemedy: Petition for review under Rule 43 of except those specifically passed on to thethe Rules of Court with the Court of Appeals. Ombudsman.
Note: The second paragraph of Section 14, Since the power to investigate has been vestedR.A. No. 6770, which states that “[n]o court 'to the Ombudsman, the Special Prosecutorshall hear any appeal or application for remedy can only investigate and prosecute ifa*gainst the decision or findings of the authorized by the Ombudsman.Ombudsman, except the Supreme Court, onpure question of law,” is unconstitutional. Appointment of Special ProsecutorEffectively, Congress increased the appellate 1. The President selects from a list of at leastjurisdiction of the Supreme Court without its twenty-one (21) nominees prepared by theadvice and concurrence. By confining the Judicial and Bar Councilremedy to a Rule 45 appeal, the provision 2. From a list of three (3) nominees for eachtakes away the remedy of certiorari, grounded vacancy thereafter, which shall be filledon 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 theDecisions or resolutions of the Ombudsman in Ombudsman for filling up of positions therein,administrative cases absolving the respondent regional, cultural or ethnic considerations shallof the charge or imposing upon him the penalty be taken into account to the end that the Officeof public censure or reprimand, suspension of shall be as much as possible representative ofnot more than one month, or a fine equivalent the regional, ethnic and cultural make-up of theto one-month salary, is final and unappealable Filipino nation.[Agpalo]. QualificationsIn 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 anyCourt [Agpalo]. elective national or local office in the immediately preceding election whether3. Judicial review in penal regular or special. proceedings TermGeneral Rule: Courts cannot review the The Special Prosecutor shall serve for a termexercise of discretion of the Ombudsman in of seven (7) years without reappointment.prosecuting or dismissing a criminal complaintfiled before it [Loquias v. Ombudsman, G.R. Removal; Filling of VacancyNo. 139396 (2000)]. 1. Grounds for removal: Treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. Page 248 of 412 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAW2. 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 theAuthority 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 UP Law Bar Operations Commission 2022 LAW ON PUBLIC OFFICERS POLITICAL LAWand the office must be direct and not 5. Chairpersons and members ofaccidental, that is, the relation has to be such Constitutional Commissions, withoutthat, in the legal sense, the offense cannot exist prejudice to the provisions of thewithout the office. Constitution; and 6. All other national and local officialsc. Officials and Private Individuals classified as Grade "27" and higher underSubject 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 thecases mentioned in (1) above where one or public officers or employees, including thosemore of the accused are officials occupying the employed in government- owned or -controlledfollowing positions in the government, whether corporations, they shall be tried jointly with saidin a permanent, acting or interim capacity at the public officers and employees in the propertime of the commission of the offense: courts which shall exercise exclusive1. 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 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAWPOLITICAL LAW ADMINISTRATIVE LAW POLITICAL LAW
I. GENERAL PRINCIPLES in the exercise of disciplinary power as provided by law [Sec. 2(1), Book VII, Administrative Code].A. Definition Administrative agencies are the organs of1. Administrative Law government, other than a court and other thanAdministrative law is that branch of modern law the legislature, which affect the rights of privateunder which the executive department of the parties either through adjudication or throughgovernment, acting in a quasi-legislative or rule-making [Nachura].quasi-judicial capacity, interferes with theconduct of the individual for the purpose of Administrative agency is the term usedpromoting 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 aAdministrative law is the law concerning the government body charged with administeringpowers and procedures of administrative and implementing particular legislation [Deagencies, including specially the law governing Leon].judicial review of administrative actions [DeLeon]. However, care must be taken in distinguishing between the quasi-legislative and quasi-judicialAccording to scholars, a broad conception of sets of powers and the purely administrativeadministrative law is that it is the amalgamation powers. In contrast to rule-making andof public laws (i.e., constitutional provisions, adjudication, purely administrative power islegislative statutes, judicial opinions, executive concerned with the work of applying policiesdirectives) that addresses the democratic and enforcing orders as determined by properlegitimacy, 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 Constitutionalwith an emphasis on the role of institutional Considerationsoversight by the courts [Osorio]. This seems toconform with the understanding of this area of Why did administrative agencies comelaw in the Philippines. about? The principle of separation of powers has2. 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 subjectsconduct and affairs of individuals for their own needing government regulation; andwelfare and the promulgation of rules and 3. Increased difficulty of administeringregulations to better carry out the policy of the lawslegislature or such as are devolved upon theadministrative agency by the organic law of its One example is the principle of “subordinateexistence [In Re: Rodolfo v. Manzano, A.M. legislation,” whereby a larger amount ofNo. 88-7-1861-RTC (1988)]. discretion is vested in administrative and executive officials, not only in the execution of3. Administrative Agencies the laws, but also in the promulgation of certain“Agency” includes any department, bureau, rules and regulations calculated to promoteoffice, commission, authority or officer of the public interest [Pangasinan Transportation v.National Government authorized by law or Public Service Commission, G.R. No. L-47065executive 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 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAW 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 [EduII. POWERS OF v. Ericta, supra].
ADMINISTRATIVE A. Quasi-Legislative (Rule-AGENCIES Making) Power1. Quasi-legislative (rule-making) power The authority delegated by the law-making2. Quasi-judicial (adjudicatory) power body to the administrative agency to adopt3. 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 entitledDoes the grant of such powers to to respect. Such rules and regulations partakeadministrative agencies violate the of the nature of a statute and are just as bindingdoctrine 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 lawfrom the doctrine of separation of powers which and enjoy the presumption of constitutionalitystates that Congress cannot delegate its and legality until they are set aside with finalitylegislative 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 ofbranches of the government, except when local an overseer, may not pass upon their legalitygovernments may over local affairs participate by subjecting them to its stamp of approvalin 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 unconstitutionalThe legislature does not abdicate its function [Abakada Guro Party List v. Hon. Cesarwhen it describes the job to be done, who is to Purisima, G.R. No. 166715 (2008)].
Page 253 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWPower of Subordinate Legislation Permissible DelegationThe power of subordinate legislation allows In every case of permissible delegation, thereadministrative bodies to implement the broad must be a showing that the delegation itself ispolicies laid down in a statute by “filling in” the valid.details. The regulation should be germane tothe 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 determinableThis is effected by the promulgation of — to which the delegate must conform in theadministrative bodies of what are known as performance of his functions [Defensor-supplementary regulations, such as Santiago v. COMELEC, G.R. No. 127325implementing rules and regulations which have (1997)].the force and effect of law [Eastern ShippingLines, Inc. v. POEA, G.R. No. 76633 (1988)]. 1. Ascertainment of Facts The preliminary ascertainment of facts as basisThe power of administrative officials to for the enactment of legislation is not of itself apromulgate rules and regulations is only limited legislative function but is simply ancillary toto carrying into effect what is provided in the legislation. Thus, the duty of correlatinglegislative enactment [Miners Association of information and making recommendations isthe Philippines, Inc. v. Factoran, Jr., G.R. No. the kind of subsidiary activity which the98332 (1995)]. legislature may perform through its members, or which it may delegate to others to performAdministrative 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 lawis in the matter of subordinate legislation, to inquire the existence of certain facts and todesigned to implement a primary legislation by apply the law thereto in order to determine whatproviding the details thereof. An interpretative his official conduct shall be and the fact thatrule, on the other hand, is designed to provide these acts may affect private, rights do notguidelines to the law which the administrative constitute an exercise of judicial powers.agency is in charge of enforcing [BPI LeasingCorporation 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 whichNon-delegation Doctrine call into operation the statute’sPotestas delegata non delegare potest. provisions, andWhat has been delegated cannot be 2. Grant commissioners and otherdelegated. subordinate officers the power to ascertain and determine appropriateThe general rule barring delegation of facts as a basis for procedure in thelegislative 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 upon2. 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 Details5. 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 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWhave 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 anda. 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, tod. 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 ofe. 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 itsRequisites for a Valid Delegation limits, maps out its boundaries andWhat 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 circ*mstances underdelegation; and (2) the presence of a sufficient which the legislative command is to bestandard [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 thedelegate, 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]; oressentially legislative [Abakada v. Ermita, G.R. 3. Embodied in other statutes on the sameNo. 168056 (2005)]. matter and not necessarily in the same law1. 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, theA statute is incomplete if it does not lay down only standard which the legislature is requiredany rule or definite standard by which the to prescribe for the guidance of theadministrative officer or board may be guided administrative authority is that the rate bein the exercise of discretionary powers reasonable and just. However, it has been held Page 255 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWthat even in the absence of an express Legislative Interpretativerequirement as to reasonableness, this Rules Rulesstandard may be implied [PHILCOMSAT v.Alcuaz, G.R. No. 84818 (1989)]. As to So long as At best Binding the court merelyThe power conferred upon an administrative Effect finds that the advisory; theagency to issue rules and regulations legislative court maynecessary to carry out its functions has been rules are review theheld to be an adequate source of authority to within the correctness ofdelegate a particular function, unless by power of the theexpress provision of the Act or by implication it administrativ interpretationhas been withheld [Realty Exchange Venture e agency to of the lawCorp. v. Sendino, G.R. No. 109703 (1994)]. pass, as given by the seen in the administrative1. Kinds of Administrative Rules and primary law, body, andRegulations then the substitute its rules bind own view ofa. Supplementary Legislation the court. what isPertains to rules and regulations that fix details The court correct.in the execution of a policy in the law; This is cannotalso called a legislative rule or subordinate question the If it is notlegislation. e.g., IRRs of the Labor Code. wisdom or within the correctness scope of theb. Interpretative Legislation of the policy administrativePertains to rules and regulations construing or contained in agency, theinterpreting the provisions of a statute to be the rules. court may, inenforced and they are binding on all concerned addition tountil 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 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAW 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. PhilippineRestrictions on Interpretative Racing Commission, supra].Regulations1. Does not change the character of a The function of promulgating rules and ministerial duty; regulations may be legitimately exercised only2. 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 administrative3. 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 of4. 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 of6. 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; and2. Requisites for Validity 5. If it is arbitrary or unreasonable ora. Within the scope or authority of law unconstitutional.b. Authorized by lawc. Reasonable relation to the purposes Where a rule or regulation has a provision notd. Promulgated in accordance with expressly stated or contained in the statute prescribed procedure being implemented, that provision does not necessarily contradict the statute. A legislativea. 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 byand regulations which are inconsistent with the providing the details thereof. All that is requiredprovisions of the Constitution or a statute, is that the regulation should be germane to theparticularly the statute it is administering, or objects and purposes of the law; that thewhich created it, or which are in derogation of, regulation be not in contradiction to but inor defeat, the purpose of a statute [Dagan v. conformity with the standards prescribed by the
Page 257 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWlaw [Holy Spirit Homeowners Association, Inc. publication at all, since its purpose is to informv. 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 detailsfor regulating the mode or proceedings in order Publication is mandatory for the following toto 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, butor 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 ordersAdministrative regulations must always be in promulgated by the President in theharmony with the provisions of the law because exercise of legislative powers wheneverany resulting discrepancy between the two will the same are validly delegated by thealways 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 lawAccordingly, as the constitutional body pursuant also to a valid delegation;specifically charged with the enforcement and 4. City charters; andadministration of all laws and regulations 5. Circulars issued by the Monetary Board notrelative 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 isCOMELEC 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 shouldbe respected, unless it is clearly shown that the Publication is not necessary for the followingsame 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 theIn the case at bar, A.O. No. 308 may have been administrative agency need not theimpelled by a worthy purpose, but, it cannot published);pass constitutional scrutiny for it is not narrowly 3. Letters of instructions issued bydrawn. When the integrity of a fundamental administrative superiors concerning theright is at stake, this court will give the rules or guidelines to be followed by theirchallenged law, administrative order, rule or subordinates in the performance of theirregulation a stricter scrutiny. It will not do for duties;the authorities to invoke the presumption of 4. Internal instructions issued by anregularity 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 Publication1. 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) certified2. 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, butthe legislature may in its discretion provide that The Administrative Code of 1987, particularlythe usual 15-day period shall be shortened or Section 3 of Book VII thereof, expresslyextended. Publication must be in full or it is no requires each agency to file with the Office of Page 258 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWthe National Administrative Register (ONAR) of requirements of publication and filing ofthe UP Law Center three (3) certified copies of administrative issuances renders saidevery rule adopted by it. Administrative issuances ineffective [Republic v. Pilipinasissuances which are not published or filed with Shell Petroleum, G.R. No. 173918 (2008)].the ONAR are ineffective and may not beenforced [GMA v. MTRCB, G.R. No. 148579 Exceptions:(2007)]. 1. Different date is fixed by law or specified in the rule; andNot 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 ofpermanent character are to be filed. According Penal rulesto the UP Law Center’s guidelines for receiving Every rule establishing an offense or definingand 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 casesinternal 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 LawCenter [Board of Trustees v. Velasco, G.R. No. General Rule: Rules must not provide penal170463 (2011)]. sanctions.
Effectivity Exception: A violation or infringement of a ruleEffectivity: 15 days after filing AND or regulation validly issued can constitute apublication 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 haveshall 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 administrativedifferent date is fixed by law, or specified in the regulation must be made a crime by therule in cases of imminent danger to public delegating statute itself; andhealth, safety and welfare, the existence of 2. The penalty for such violation must bewhich must be expressed in a statement provided by the statute itself [Perez v. LPGaccompanying 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 effectNote: [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 penal3. 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 andThese requirements of publication and filing regulations must not include, prohibit or punishwere put in place as safeguards against acts which the law does not even define as aabuses 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 publicconcern and, therefore, require strict In a prosecution for a violation of ancompliance. Failure to comply with the administrative order, it must clearly appear that Page 259 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWthe order is one within the scope of authority powers exercised, in that such must beconferred upon the administrative body and the accompanied with certain formalities andorder 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 agencyIn the same way that laws must have the to determine questions of fact to which thebenefit of public hearing, it is generally required legislative policy is to apply, in accordance withthat before a legislative rule is adopted there the standards laid down by the law itself [Smartmust 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 judicialPublic 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 PowerRules Judicial power, in the strict sense, is the powerFollowing the doctrine of necessary to hear, try, and determine all spurts of casesimplication, the grant of express power to at law and equity which are brought before theformulate implementing rules and regulations Courts. It is the power to make a finalmust necessarily include the power to amend, determination of what the law is and torevise, alter, or repeal the same [Yazaki Torres adjudicate the respective legal rights orManufacturing, 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 thePower function of the agency is primarily administrative and the power to hear andIt is the power of an administrative agency to determine controversies is granted as anhear and determine, or to ascertain facts and incident to the administrative duty [De Leon].decide by the application of rules to theascertained facts. By this power, administrative Extent of Quasi-Judicial Powers ofauthorities are enabled to interpret and apply Administrative Agenciesnot only implementing rules and regulations Jurisdiction is limited to those matters that arepromulgated by them but also the laws within the special competence of the particularentrusted to their administration [De Leon]. agency. Given the presumed special competence of these agencies, Courts will thusNote: The use of the term quasi-judicial is to generally sustain the decision of thesedesignate the character of the proceedings or administrative authorities. Page 260 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWExtent of powers to be exercised by the by patient inquiry or observation; to examineadministrative agency is defined by the and inquire into with care and accuracy; to findenabling act of such agency, meaning the grant out by careful inquisition; examination; theof quasi-judicial powers cannot be implied. taking of evidence; a legal inquiry." Investigation being in turn described as "anQuasi-judicial power involves the interpretation administrative function, the exercise of whichand 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 "toWhen an administrative body or agency is settle finally (the rights and duties of the partiesconferred 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 anTo 'investigate' means to examine, explore, investigation, declaration, and theinquire or delve or probe into, research on, enforcement of liabilities as they stand onstudy. The purpose of an investigation is to present or past facts and under lawsdiscover, find out, learn, obtain information. It supposed to exist, while quasi-legislationdoes not involve deciding or resolving looks to the future and changes existingcontroversies in the facts inquired into by conditions by making a new rule to beapplication of the law to the facts established applied prospectively.by the inquiry. 2. Adjudication applies to named persons or to specific situations while the legislationThe legal meaning of "investigate" is lays down general regulations that apply toessentially the same: "to follow up step by step classes of persons or situations. Page 261 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAW3. 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 enforceRequisites 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 aGeneral Rule: A tribunal, board or officer complaint. The purpose of the subpoena is toexercising judicial functions acts without discover evidence, not to prove a pendingjurisdiction if no authority has been conferred charge. When investigative and accusatoryto it by law to hear and decide cases. duties are delegated by statute to an administrative body, it, too may take steps toJurisdiction to hear must be explicit or by inform itself as to whether there is probablenecessary implication, conferred through the violation of the law.terms of the enabling statute. A subpoena meets the requirements forEffect 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; andG.R. No. 43653 (1977) citing Batangas Laguna 3. The information is reasonably relevantTayabas Bus Co. vs. PSC, G.R. Nos. 25994 & [Evangelista v. Jarencio, G.R. No. L-2927426004-26046 (1966)]. (1975)].
Rationale: They are mere creatures of law and 2. Contempt Powerhave no general powers but only such as have General Rule: Exercised through the orderbeen conferred upon them by law. and assistance of RTC.
Powers included in Quasi-Judicial Exception: When the law gives agencyFunctions contempt power.1. Subpoena power2. Contempt power The exercise of this power [to punish for3. 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 been1. Subpoena Power invariably limited to making effective the powerIn any contested case, the agency shall have to elicit testimony, and the exercise of thatthe power to require the attendance of power by an administrative body in furtherancewitnesses or the production of books, papers, of its administrative function has been helddocuments and other pertinent data, upon invalid [Guevara v. Comelec, G.R. No. L-12596request 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 ormay, in case of disobedience, invoke the aid of Warrant of Arrestthe Regional Trial Court within whose General Rule: Only judges may issue.jurisdiction the contested case being heardfalls. The Court may punish contumacy or Under the express terms of our Constitution, itrefusal as contempt [Sec. 13, Chapter 3, Book is doubtful whether the arrest of an individualVII, Administrative Code]. may be ordered by any authority other than the judge if the purpose is merely to determine the Page 262 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWexistence of a probable cause, leading to an fundamental and essential requirements of dueadministrative investigation [Qua Chee Gan v. process in trials and investigations of anDeportation 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 samein limiting the issuance of warrants of arrest to Administrative due process cannot be fullya judge]. equated with due process in its strict judicial sense, as in the former a formal trial-typeUnder Article III, Section 2, of the 1987 hearing is not always necessary and technicalConstitution, only judges, and no other, may rules of procedure are not strictly applied [Vivoissue warrants of arrest and search. The v. PACGOR, supra].exception is in cases of deportation of illegaland undesirable aliens, whom the President or Due process is satisfied when a person isthe Commissioner of Immigration may order notified of the charge against him and given anarrested, following a final order of deportation, opportunity to explain or defend himself. Thefor 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 anBoard of Commissioners v. De La Rosa [G.R. opportunity to seek a reconsideration of theNos. 95122 (1991)] reiterates the rule that for a action or ruling complained of [NAPOLCOMwarrant 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 ofdeportation. A warrant of arrest issued by the a. Effect of Decisions Rendered WithoutCommissioner of Immigration for purposes of Due Processinvestigation only is null and void for being A decision rendered without due process isunconstitutional. void ab initio the apparent lack of such may be raised at any time since due process is aException: 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. MingsonIt 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 agencyduly authorized for the purpose, as then the Decisions rendered without due process maywarrant is not that mentioned in the likewise be attacked directly or collaterally byConstitution which is issuable only on probable means of a separate action or proceedingcause. 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 cardinalNote: 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 aof deportation. The executive officials were the party to present his own case and submitones 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 evidencecarve 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 at1. Administrative Due Process least contained in the record and disclosedWhile 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 owncannot entirely ignore or disregard the independent consideration of the law and Page 263 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAW 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 the7. 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 evidenceThe 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 6threquirements are those rights applicable at the Quantum of Proofdeliberative stage. These thus set the guidingconsiderations in deliberating on the case and Quantum of proof required – substantialare the material and substantial components of evidencedecision making. Lastly, the 7th requirement is In administrative cases, only substantialsimilar 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 evidenceDrug 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 toIn administrative proceedings, procedural due justify a conclusion [Sec. 5, Rule 133, Rules ofprocess 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 in2. 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 not3. 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 Counsel4. 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 willdecide the case. As long as a party is not c. Opportunity to be Hearddeprived of his right to present his own case “To be heard” does not mean only verbaland submit evidence in support thereof, and arguments in court as one may be heardthe decision is supported by the evidence in the through pleadings. Defects in procedural duerecord, there is no question that the process may be cured when the party is givenrequirements of due process and fair trial are the opportunity to appeal. Hence, when one isfully met [American Tobacco Co. v. Director of given the opportunity to be heard eitherPatents, G.R. No. L-26803 (1975)]. through oral arguments or pleadings, then
Page 264 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWthere can be no denial of due process [Ebdane Right to Cross-examinev. Aporillo, G.R. No. 204172 (2015)]. Under Sec. 12 (3), Chapter 3, Book VII of the Administrative Code, it is provided that inThe principle that a person cannot be contested cases, every party has the right toprejudiced by a ruling rendered in an action or cross-examine witnesses presented againstproceeding in which he was not made a party him and to submit rebuttal evidence.conforms to the constitutional guarantee of dueprocess 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 fundamentalbound by the decision rendered therein. right which is part of due process. If without hisBecause he was not impleaded in said case, fault, this right is violated, he is entitled to havehe was not given the opportunity to present his the direct examination stricken off the recordcase therein [Aguilar v. O’Pallick, G.R. No. for such is considered an incomplete testimony182280 (2013)]. which is considered incompetent [Bachrach Motor Co., Inc. v. CIR, G.R. No. L-26136Any seeming defect in the observance of due (1978)].process is cured by the filing of a motion forreconsideration. Denial of due process cannot While the right to cross-examine is a vitalbe successfully invoked by a party who has had element of procedural due process, the rightthe opportunity to be heard on his motion for does not necessarily require an actual crossreconsideration [A.Z. Arnaiz Realty Inc. v. examination but merely an opportunity toOffice 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 torequire a trial-type hearing, but simply an the parties [American Inter-Fashion v. Office ofopportunity or a right to be heard [Vinta the President, G.R. No. 92422 (1991)], butMaritime 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 theThe 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 thisconstitutional precept is that the parties be On Decisions Renderedgiven notice of the trial, an opportunity to be Section 14, Article VIII of the 1987 Constitutionheard. Where the defendant failed to appear on (i.e., “No decision shall be rendered by anythe date set for the trial, of which he was court without expressing therein clearly andpreviously notified, he is deemed to have distinctly the facts and the law on which it isforfeited 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 judicialEven a trial is not always necessary for proceedings. The constitutional mandate doesadministrative due process to be satisfied not preclude the validity of “memorandumgiven that its essence is simply an opportunity decisions,” which adopt by reference theor a right to be heard [Vinta Maritime Co., Inc. findings of fact and conclusions of lawv. 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 fairopportunity to explain their side. Such cases There is no requirement in Ang Tibay v. CIRmay be resolved based solely on documentary that the decision must express clearly andevidence submitted by parties as affidavits may distinctly the facts and the law on which it istake the place of their direct testimony [Samalio based for as long as the administrativev. CA, G.R. No. 140079 (2005)]. decision is grounded on evidence and expressed in a manner that sufficiently informs Page 265 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWthe parties of the factual and legal bases of the 3. Imputation of a violation and imposition ofdecision, the due process requirement is a fine despite absence of due notice andsatisfied [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 Constitutionand the Administrative Code with respecting d. Notice and Hearingexplaining the factual and legal bases of The essence of procedural due process isjudgment, only that the decision is sufficient embodied in the basic requirement of noticeeven if it is not written in the same extended and a real opportunity to be heard. Inmanner as in judicial decisions. administrative proceedings, procedural due process simply means the opportunity toThe order, it is true, does not make its own explain one’s side or the opportunity to seek adiscussion of the evidence or its own findings reconsideration of the action or rulingof 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 discussionof the evidence and the findings of fact based Notice is necessary as this gives parties thethereon. The situation differs if the court opportunity to be heard and to presentdisagrees with the report in which case it evidence, and such is not a mere technicalityshould state the reasons for its disagreement. but is an indispensable ingredient of dueIf it is in full accord with the report, it is process [Uy, et al., v. COA, G.R. No. 130685purposeless to repeat what the examiner has (2000)].already found in it [Indias v. Philippine IronMines, G.R. No. L-9987 (1957)]. Aside from that prescribed by statute, the necessity of notice and hearing in anNote: In Indias, the “court” being referred to administrative proceeding would depend onwas the Court of Industrial Relations which was the character of the proceeding and thean administrative agency circ*mstances involved [De Leon].
However, in the Administrative Code, it is When Requiredprovided that: 1. When the law specifically requires it [Sec.Decision – Every decision rendered by the 11, Chap. 3, Book VII, Administrativeagency in a contested case shall be in writing Code]; orand shall state clearly and distinctly the facts 2. When provided for by the rules andand the law on which it is based. The agency regulations of the administrativeshall decide each case within thirty (30) days body/agency [Bautista vs. Workmen’sfollowing 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, orrecord, if any, or to them [Sec. 14, Chap. 1, property by the action of an administrativeBook VII, Administrative Code]. body [Central Bank vs. Cloribel, G.R. No. L-26971 (1972)] such as in cases where anFurther note that in Magcamit v. Internal Affairs administrative body acts in a judicial orService-Philippine Drug Enforcement Agency quasi-judicial matter. Here, notice and[G.R. No. 198140 (2016)], the Court hearing does not connote full adversarialcharacterized the 7th requirement in Ang Tibay proceedings provided that the parties areas one “similar in substance to the given a fair and reasonable opportunity toconstitutional requirement that a decision of a explain their side of the controversy [Decourt must state distinctly the facts and the law Leon].upon which it is based”. When Not RequiredDue Process is Violated When: 1. When an administrative agency merely1. There is failure to sufficiently explain the passed upon the sufficiency of the reason for the decision rendered; or evidence presented before an office under2. If not supported by substantial evidence; or it in which the petitioner was heard [Arocha vs. Vivo, L-24844 (1967)]; Page 266 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAW2. 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 safety5. 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, speedyMeetings in the nature of consultation and and inexpensive determination of theirconferences may not be valid substitutes for respective claims and defenses. As a generalthe 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. 174935Where the establishment affected by an ex (2008)].parte cease and desist order contests thecorrectness 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 ahold a public hearing where such hierarchy of authorities, meaning by expressestablishment 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 theThat such an opportunity is subsequently administrative system itself of the action ofavailable is really all that is required by the due lower administrative authorities by theirprocess clause of the Constitution [Pollution superiors; orAdjudication Board v. CA, supra]. b. A particular administrative body is authorized to hear and decide appealsRequired Notice and Hearing under the from, and review the determinations of,Administrative Code certain other administrative bodies or1. 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 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWUnless otherwise provided by law or executive 3. That in which the statute attempts to makeorder, an appeal from a final decision of an a court a part of the administrative schemeagency 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 anAdministrative Code]. administrative agency, shall exercise powers of such extent that they differ fromTo 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; andAn agency’s administrative process must 6. That embraced in statutes which providealways be exhausted before external remedies for appeal at the highest level, namely, thecan be applied, meaning that even if a President.governmental entity committed a grave abuseof discretion, litigants must first ask for The appellate administrative agency mayreconsideration or a review from the body itself conduct additional hearings in the appealedor 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 fullyexercised its jurisdiction and the Court may In order that the review of the decision of athus focus on the questions of law presented subordinate officer might not turn out to be abefore it [Kilusang Mayo Uno v. Aquino III, farce, the reviewing officer must perforce besupra]. other than the officer whose decision is under review; otherwise, there could be no differentEffect of appeal view or there would be no real review of theThe 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 pendingappeal, as it may deem just, considering the The law, in prescribing a process of appeal tonature and circ*mstances of the case [Sec. 21, a higher level, contemplates that the reviewingChap. 3, Book VII, of the Administrative Code]. officer is a person different from the one who issued the appealed decision. Otherwise, theDifferent kinds of administrative appeal review becomes a farce; it is renderedand review [De Leon]: meaningless [Rivera v. CSC, G.R. No. 1151471. 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 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWpresumably the President’s. However, the 4. There must be identity of parties, subjectdoctrine 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 parties3. Administrative Res Judicata [Manila Electric Co. v. Phil. ConsumersRes 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 Conceptscompetent jurisdiction, upon any matter within Res judicata has two (2) concepts:its jurisdiction, is conclusive of the rights of the 1. Bar by prior judgmentparties or their privies, in all other actions or 2. Conclusiveness of judgmentsuits in the same or any other judicial tribunalof concurrent jurisdiction on the points and 1. Bar by Prior Judgmentmatters in issue in the first suit [Civil Bar by prior judgment exists when, as betweenAeronautics Administration v. Yu, G.R. No. the first case where the judgment was157557 (2006)]. rendered and the second case that is sought to be barred, there is identity of parties, subjectNothing is more settled in law than that once a matter, and causes of action.judgment attains finality it thereby becomesimmutable and unalterable [Civil Service This is enunciated in Rule 39, Section 47(b) ofCommission 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 adjudgedScope of application or as to any other matter that could have beenThe doctrine of res judicata does not apply raised in relation thereto, conclusive betweenexclusively to courts but may be extended to the parties and their successors in interest bydecisions of bodies upon whom judicial powers the title subsequent to the commencement ofhave been conferred [Ipekdijan Merchandising the action or special proceeding, litigating forv. 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-judicialproceedings and not to the exercise of purely 2. Conclusiveness of Judgmentadministrative in nature. When the Conclusiveness of judgment applies when aadministrative 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 ajudicata 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 issues157717 (2011)]. to apply [Emerald Garment Manufacturing Corp., G.R. No. 210693 (2017)].It may not be invoked in labor relationsproceedings considering that such Under the doctrine of conclusiveness ofproceedings are non-litigious and summary in judgment, facts and issues actually and directlynature without regard to legal technicalities resolved in a former suit cannot again be raisedobtaining 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 causesRequisites of action is not required but merely identity of1. 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) of3. It must be a judgment on the merits; and the Rules of Civil Procedure: Page 269 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAW“(c) In any other litigation between the same Forum shoppingparties or their successors in interest, that only There is forum shopping whenever, as a resultis deemed to have been adjudged in a former of an adverse opinion in one forum, a partyjudgment or final order which appears upon its seeks a favorable opinion (other than byface to have been so adjudged, or which was appeal or certiorari) in another. The principleactually and necessarily included therein or applies not only with respect to suits filed in thenecessary thereto” courts but also in connection with litigation commenced in the courts while anEffect of res judicata administrative proceeding is pending, in orderThe doctrine of res judicata provides that a final to defeat administrative processes and injudgment on the merits rendered by a court of anticipation of an unfavorable administrativecompetent jurisdiction, is conclusive as to the ruling and a favorable court ruling.rights of the parties and their privies andconstitutes an absolute bar to subsequent The test for determining whether a party hasactions involving the same claim, demand, or violated the rule against forum shopping iscause of action [Civil Aeronautics where a final judgment in one case will amountAdministration 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. CAagencies rendered pursuant to their quasi- (1996)].judicial authority, have, upon their finality, theforce and binding effect of a final judgment The rule against forum shopping applies onlywithin the purview of the doctrine of res to judicial cases or proceedings, not tojudicata, which forbids the reopening of a administrative cases [Office of thematter once judicially determined by competent Ombudsman v. Rodriguez, G.R. No. 172700authority [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 ofcitizenship, 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 otherDue to the difference between the quantum of subordinate officers the power toevidence, procedure, and sanctions imposed in ascertain and determine appropriatecriminal and administrative proceedings, the facts as a basis for procedure in thefindings 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 affectedThe 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 publicservice, based on the time-honored principlethat a public office is a public trust. On the other 2. Investigative Powershand, the purpose of criminal prosecution is the Administrative agencies’ power to conductpunishment of crime [Ferrer v. Sandiganbayan, investigations and hearings, and make findingsG.R. No. 161067 (2008)]. Page 270 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWand recommendations thereon is inherent in sovereignty and the licensee, and is not atheir functions as administrative agencies. property in any constitutional sense.
The investigative powers of an administrative A license granted by the State is alwaysagency must be exercised within the limits revocable. As a necessary consequence of itsprescribed and bear a reasonable and main power to grant license or permit, the Statelegitimate relationship to the general powers or its instrumentalities have the correlativegranted, which includes the authority to obtain power to revoke or recall the same. This powerinformation necessary to discharge its proper can only be restrained by an explicit contractfunctions [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-judicialbodies, which have acquired expertise Definition of Licensebecause of their jurisdiction is confined to “License” includes the whole or any part of anyspecific 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 ofNavigation Philippines Inc. vs. Heirs of Ricardo permission, or regulation of the exercise of aS. Ganal, G.R. No. 220168 (2017)]. right or privilege [Sec. 2, Chap. 1, Book VII, Administrative Code].Exception: One of the exceptions to the aboverule is when the factual findings of the quasi- Definition of Licensingjudicial agencies concerned are conflicting or “Licensing” includes agency process involvingcontrary with those of the CA. the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation,“Investigate” means to examine, explore, amendment, modification or conditioning of ainquire 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, obtaininformation. Nowhere included or intimated is Procedurethe notion of settling, deciding or resolving a 1. When the grant, renewal, denial orcontroversy involved in the facts inquired into cancellation of a license is required toby application of the law to the facts be preceded by notice and hearing, theestablished by the inquiry [Cariño v. CHR, G.R. provisions concerning contested casesNo. 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 been3. 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 withinits terms. It is not any way vested, permanent, The absence of an expiry date in a license doesor absolute. It is not a contract between the not make it perpetual. Notwithstanding that Page 271 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWabsence, the license cannot last beyond the life Note: The old doctrine is if the rate-fixing powerof 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 AdminL-41480 (1976)]. Code, the distinction seems to have been disregarded, since the provision did not qualifyNotice and hearing; when required the character of the rate-fixing, and nowNotice and hearing are required if it is a requires prior notice (via publication) before thecontested 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 aincluding 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 asbe determined after hearing [Sec. 2, Chap. 1, commutation, mileage, kilometerage and otherBook VII, Administrative Code]. special rates which shall be imposed by law or regulation to be observed and followed by anyWhen 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 ofsuch hearing does not violate the due process Publication requirementclause and the exercise of the discretion In the fixing of rates, no rule or final order shallvested in him cannot be deemed whimsical and be valid unless the proposed rates shall havecapricious because of the absence of such been published in a newspaper of generalhearing [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, Administrative Code].4. Fixing of Rates, Wages, and Factors considered in fixing of ratesPrices In the fixing of rates, the only standard whichGenerally, the power to fix rates is a quasi- the legislature is required to prescribe for thelegislative function, i.e., it is meant to apply to guidance of the administrative authority is thatall. However, it becomes quasi-judicial when the rate be reasonable and just. Even in thethe rate is applicable only to a particular party, absence of an express requirement as topredicated upon a finding of fact reasonableness, this standard may be implied.[PHILCOMSAT v. Alcuaz, supra, citing ViganElectric Light Co. v. Public Service What is a just and reasonable rate is a questionCommission, G.R. No. L-19850 (1964)]. of fact calling for the exercise of discretion, good sense, and a fair, enlightened andWhere 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 wouldhearing is required [Vigan Electric Light Co. v. place an operator in a situation where he willPublic Service Commission, supra]. continue to operate at a loss. It is essential also to consider the given situation, requirementsHowever, an administrative agency may be and opportunities of the utility [KMU Laborempowered 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 theIf the fixing of rates were a legislative function, services. The purpose of a hearing is tothe giving of prior notice and hearing to the determine what a just and reasonable rate isaffected parties is not a requirement, except [KMU Labor Center v. Garcia, supra].where the legislature itself requires it [DeLeon].
Page 272 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWIn fixing the rate, it would not be fair to thepublic to base it upon a peak cost, and it wouldnot be fair to the owner of the property to placeit upon a minimum cost [Ynchausti SteamshipCo. v. Public Utility Commissioner, G.R. No.17665 (1922)].Nowhere under law are the regulatory bodies,the Public Service Commission and LTFRBalike, authorized to delegate the power ofroute-fixing and rate-making for the transportsector to a common carrier, a transportoperator, or other public service [KMU LaborCenter 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 ReturnThe rate of return is a judgment percentageprescribed by administrative and judicialpronouncements. The Court has consistentlyadopted a 12% rate of return for public utilities.
2. Rate BaseThe rate base is an evaluation of the propertydevoted by the utility to the public service or thevalue of invested capital or property which theutility is entitled to a return.
3. The Return ItselfThe return itself is the computed revenue to beearned by the public utility, achieved bymultiplying the rate of return with the rate base.
Page 273 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAW
III. DOCTRINES OF Note: Rule 43 of the Rules of Court provides that the Court of Appeals shall have appellatePRIMARY JURISDICTION jurisdiction over awards, judgments, final orders or resolutions of or authorized by anyAND EXHAUSTION OF quasi-judicial agency in the exercise of itsADMINISTRATIVE quasi-judicial functions.REMEDIES Extent of Judicial ReviewJudicial Review 1. Questions of LawJudicial review may embrace any form of a. Constitutionality of the law creating thejudicial scrutiny of a matter which arises when agency and granting it powerssuch action is brought into question before a b. Validity of agency action if thesecourt. It is ordinarily available only for final transcend limits established by lawadministrative action [De Leon]. c. Correctness of interpretation or application of the lawGeneral RuleJudicial review may be granted or withheld as A decision of an administrative agency on aCongress chooses, except when the question of law is in no sense conclusive uponConstitution 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 notreviewable and it would still not offend due 2. Questions of Factprocess. Review shall be made on the basis of the record taken as a whole. The findings of fact ofHowever, Sec. 1, para. 2, Art. VIII of the the agency when supported by substantialConstitution provides that judicial review of evidence shall be final except when specificallyadministrative 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 agencyIt is generally understood that as to are final when supported by substantialadministrative agencies exercising quasi- evidence.judicial or legislative power, there is anunderlying power in the courts to scrutinize the Exceptionsacts of such agencies on questions of law and 1. Specifically allowed otherwise by lawjurisdiction even though no right of review is 2. Fraud, imposition, mistake, or othergiven by statute. Judicial review is proper in error of judgment in evaluating thecase of lack of jurisdiction, grave abuse of evidence [Ortua v. Singsondiscretion, 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 documentaryL-19100 (1963)]. evidence presented by the parties [Tan Tiong Teck v. SEC, G.R. No. L-46471Rationale (1940)]The purpose of judicial review is to keep the 4. Decision of the agency was rendered byadministrative agency within its jurisdiction and an almost divided agency and that theprotect 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-2256restricts the separation of powers and forestalls (1969)]arbitrary and unjust adjudications [St. Martin’sFuneral Homes v. NLRC, G.R. No. 130866(1998)].
Page 274 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAW3. Questions of Discretion It can only occur where there is a concurrence of jurisdiction between the court and theGeneral Rule: Administrative and administrative agency.discretionary functions may not be interferedwith by the courts. It is a question of the court yielding to the agency because of the latter’s expertise, andRationale: Courts have none of the technical does not amount to ouster of the court [Texasand economic or financial competence which & Pacific Railway v. Abilene, 204 U.S. 426specialized administrative agencies have at (1907)].their disposal, and in particular must be wary ofintervening in matters which are at their core It may occur that the Court has jurisdiction totechnical and economic in nature [PLDT v. take cognizance of a particular case, whichNational Telecommunications Commission, means that the matter involved is also judicialG.R. No. 94374 (1995)]. in character. However, if the determination of the case requires the expertise, specializedExceptions 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 appliesJurisdiction (or Prior Resort) where a claim is originally cognizable in the courts, and comes into play wheneverThe doctrine of primary jurisdiction applies only enforcement of the claim requires thewhere the administrative agency exercises its resolution of issues which, under a regulatoryquasi-judicial or adjudicatory function. Thus, in scheme, have been placed within the specialcases involving specialized disputes, the competence of an administrative body; in suchpractice has been to refer the same to an case, the judicial process is suspendedadministrative agency of special competence pending referral of such issues to thepursuant to the doctrine of primary jurisdiction. administrative body for its view [IndustrialThe courts will not determine a controversy Enterprises, Inc. v. CA, supra].involving a question which is within thejurisdiction of the administrative tribunal prior to The doctrine of primary jurisdiction does notthe resolution of that question by the warrant a court to arrogate unto itself authorityadministrative tribunal, where the question to resolve a controversy the jurisdiction overdemands the exercise of sound administrative which is initially lodged with an administrativediscretion 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 intricatematters of fact, and a uniformity of ruling is Rationaleessential 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 administrativeCommunications v. NTC, supra]. expertness; and
Page 275 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAW 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 primaryIn this era of clogged docket courts, the need jurisdiction sua sponte and its invocationfor specialized administrative boards with the cannot be waived by the failure of the parties tospecial knowledge and capability to hear and argue it as the doctrine exists for the properdetermine promptly disputes on technical distribution of power between judicial andmatters has become well-nigh indispensable. administrative bodies and not for theBetween the power lodged in an administrative convenience of the parties [Euro-Medbody and a court, the unmistakable trend has Laboratories Phil., Inc. v. Province ofbeen to refer it to the former [GMA v. ABS CBN, Batangas, G.R. No. 148106 (2006)].G.R. No. 160703 (2005)]. When applicableThe objective of the doctrine of primary The doctrine applies only where thejurisdiction 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 aspectof some question arising in the proceeding When not applicablebefore the court [Smart v. NTC, supra]. a. When the issue is not within the competence of the administrative body toRequisites act on (e.g., pure questions of law, over1. 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 or3. Legislative intent on the matter is to have constitutionality of a rule or regulation uniformity in rulings. issued by the administrative agency in the4. 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 requireEffect specialized skills and knowledge forThe judicial process is suspended pending resolution to justify the exercise of primaryreferral of such issues to the administrative jurisdiction.body for its view [Smart v. NTC, supra]. B. Doctrine of Exhaustion ofAll the proceedings of the court in violation ofthe doctrine and all orders and decisions Administrative Remediesrendered thereby are null and void [Province ofAklan v. Jody King Construction and General RuleDevelopment Corp., G.R. No. 197592 (2013)]. Recourse through court action cannot prosper until after all such administrative remediesDoes not per se have the effect of restraining have first been exhausted. If remedy isor 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 berule 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 bywhere one is a civil case and the other is an which administrative appeal or remedy couldadministrative proceeding, in the interest of be effected, the same should be followedgood order, it behooves the court to suspend before recourse to judicial action can be Page 276 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWinitiated [Pascual v. Provincial Board, G.R. No. This list has been expanded by case law toL-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 notadministrative remedies is the well-entrenched exclusive but merely cumulative ordoctrine on separation of powers, which concurrent to a judicial remedyenjoins upon the Judiciary a policy of non- [Pascual v. Provincial Board, supra].interference with matters falling primarily (albeit 5. There are circ*mstances indicatingnot exclusively) within the competence of other urgency of judicial intervention [DAR v.departments. Courts, for reasons of law, comity Apex Investment, G.R. No. 149422and 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 [Informationauthorities 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 beforum [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 isThe 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 onlyspecialized matters are first resolved by the cause great and irreparable damagebody which has the expertise and competence which cannot be prevented except byto resolve them, and, in most cases, to give the taking the appropriate court action [Deagency a chance to correct its own errors and Lara, Jr. v. Cloribel, G.R. No. L-21653prevent unnecessary and premature resort to (1965)].the courts. It also entails lesser expenses and 10. When it involves the rule-making orprovides for a speedier disposition of quasi-legislative functions of ancontroversies. administrative agency [Smart v. NTC, supra]3. Reasons of Comity 11. When the administrative agency is inExpedience, courtesy, convenience. estoppel [Republic v. Sandiganbayan,4. Separation of Powers supra]Enjoins upon the Judiciary a policy of non- 12. Doctrine of qualified political agencyinterference with matters falling primarily (albeit (respondent is a department secretarynot exclusively) within the competence of other whose acts as an alter ego of thedepartments. President bears the implied and assumed approval of the latter) [Demaisip v. CA, G.R. No. L-13000Exceptions (1959); Pagara v. CA, G.R. No. 96882The exceptions may be condensed into three: (1996)]1. Grave abuse of discretion; 13. The subject of controversy is private2. 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 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAW 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 administrativeremediesA direct action in court without prior exhaustionof administrative remedies, when required, ispremature, warranting its dismissal on a motionto dismiss grounded on lack of cause of action.
Before a party is allowed to seek theintervention of the court, it is a pre-conditionthat he should have availed of all the means ofadministrative processes afforded him. Hence,if a remedy within the administrative machinerycan still be resorted to by giving theadministrative officer concerned everyopportunity to decide on a matter that comeswithin his jurisdiction then such remedy shouldbe exhausted first before the court's judicialpower can be sought. The prematureinvocation of court's intervention is fatal to Page 278 of 412 UP Law Bar Operations Commission 2022 ADMINISTRATIVE LAW POLITICAL LAWWhen OP is not exercising quasi-judicialfunctionsWhen the OP itself represents a party, i.e., theRepublic, to a contract, it merely exercises acontractual right by cancelling/revoking saidagreement—a purely administrative actionwhich should not be considered quasi-judicialin nature. Thus, absent the OP's properexercise of a quasi-judicial function, the CA hasno appellate jurisdiction over the case [NarraNickel 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 issueinvolves purely a question of law there being noquestion of fact and no question requiringexpert judgment [De Leon].
Page 279 of 412 UP Law Bar Operations Commission 2022 ELECTION LAWPOLITICAL 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 amendmentA. Concept under this section shall be authorized within five years following the ratification of this1. Definition Constitution nor oftener than once every fiveSuffrage is the right to vote in the election of years thereafter.officers chosen by the people and in thedetermination of questions submitted to the The Congress shall provide for thepeople. implementation of the exercise of this right [Sec. 2, Art. XVII, 1987 Constitution].2. Scope The constitutional provision on people’sa. Election initiative to amend the Constitution can only beThe 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. 6735whom they entrust for the time being the is incomplete, inadequate, or wanting inexercise of the powers of government. essential terms and conditions insofar as initiative on amendments to the Constitution isElections 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 nationalNote: The SK election is not a regular election legislation(whether national or local) because it isparticipated in by the youth with ages ranging iii. Initiative on local legislation which refersfrom 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 ordinanceb. Plebiscite d. ReferendumThe electoral process by which an initiative on The power of the electorate to approve or rejectthe Constitution is approved or rejected by the a legislation through an election called for thepeople [Sec. 3(e), R.A. 6735]. purpose. It may be of two classes.c. Initiative i. Referendum on statutes which refers to aThe 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 Congressand enact legislations through an electioncalled for the purpose. There are three (3) ii. Referendum on local law which refers tosystems of initiative [Sec. 3(a), R.A. 6735]. a petition to approve or reject a law, resolution or ordinance enacted by regionali. Initiative on the Constitution which refers assemblies and local legislative bodiesto a petition proposing amendments to the [Sec. 3(c), R.A. No. 6735]Constitution e. RecallAmendments to this Constitution may likewise The termination of the official relationship of abe directly proposed by the people through local elective official for loss of confidence priorinitiative upon a petition of at least twelve per to the expiration of his term through the will ofcentum of the total number of registered voters, the electorate [Sec. 69, LGC]. Page 281 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWB. 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 ofConstitution the electionSuffrage may be exercised by all citizens of the Any person, who, on the day of registrationPhilippines, not otherwise disqualified by law, may not have reached the required age orwho are at least eighteen years of age, and period of residence but, who, on the day of thewho shall have resided in the Philippines for at election shall possess such qualifications, mayleast 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 monthsimmediately preceding the election. No c. Resident of the Philippines for atliteracy, property, or other substantive least one (1) yearrequirement shall be imposed on the exerciseof 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 theto impose additional substantive requirements electionfor voting like education, sex, and taxpaying Any person who temporarily resides in anotherability, but Congress may add procedural city, municipality, or country solely by any of therequirements by promulgation of the necessary following reasons shall not be deemed to havelaws. lost his original residence: i. Occupation, profession, employment inCongress may impose limitations on the private or public servicestatutory right of suffrage. The provision under ii. Educational activitiesSec. 1, Art. V, 1987 Constitution (that no iii. Work in the military or naval reservationsliteracy, property, or other substantive within the Philippinesrequirement shall be imposed on the exercise iv. Service in the Armed Forces of theof suffrage) is merely “geared towards the Philippines or the National Police Forceselimination of irrelevant standards that are v. Confinement or detention in governmentpurely 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 andto further the public good” [Kabataan Partylist It is not necessary that a person should have av. COMELEC, G.R. No. 221318 (2015)]. house in order to establish his residence or domicile in a municipality. It is enough that heBiometrics validation requirement is not an should live there, provided that his stay isunconstitutional substantive requirement. Even accompanied by his intention to reside thereinif 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 (underR.A. No. 10367 or the Biometrics Law of 2013), In election cases, the Court treats domicile andit 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 placewhich the State has the right to reasonably but also personal presence in that place,regulate” [Kabataan Partylist v. COMELEC, coupled with conduct indicative of suchsupra]. intention [Pundaodaya v. COMELEC, G.R. No. 179313 (2009)].2. Qualifications in General There is nothing wrong in an individuala. Filipino citizen by birth or changing residence so he could run for annaturalization elective post, for as long as he is able to proveNo presumption can be indulged in favor of the that he has effected a change of residence forclaimant of Philippine citizenship, and any Page 282 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWthe period required by law [Aquino v. the same in the book of registered voters uponCOMELEC, G.R. No. 120265 (1995)]. approval by the Election Registration Board [Sec. 3(a), R.A. No. 8189].A candidate does not automatically regain hisresidence after the retention or reacquisition of It is essential to the exercise of the right ofPhilippine citizenship under R.A. No. 9225. He suffrage, not the possession thereof. It is partmust 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 Precedente. Not otherwise disqualified by law Registration does not confer the right to vote but it is a condition precedent to the exercise of3. Disqualifications in General the right [Yra v. Abano, G.R. No. L-30187The following shall be disqualified from (1928)].registering [Sec. 11, R.A. No. 8189]: Registered voteri. Any person who has been sentenced by final In order that a qualified elector may vote in anyjudgment to suffer imprisonment of not less election, plebiscite, or referendum, he must bethan one (1) year, such disability not having registered in the Permanent List of Voters forbeen 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 automaticallyreacquired 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 tojudgment by a competent court or tribunal of such persons or classes as are most likely tohaving 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 toException: Unless restored to his full civil and safeguard and regulate the act of voter'spolitical rights in accordance with law. registration for the ultimate purpose of conducting honest, orderly and peacefulNote: 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 fromiii. Insane or incompetent persons declared as registrationsuch by competent authority Registration regulates the exercise of the right of suffrage and is not a qualification for suchException: Unless subsequently declared by right. Registration is only one step towardsproper authority that such person is no longer voting, and it is not one of the elements thatinsane or incompetent. makes a citizen a qualified voter. Thus, although one is deemed to be a “qualifiedC. 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 swornapplication 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 applicationsmunicipality wherein he resides and including for registration [Sec. 3(g), R.A. No. 8189]. Page 283 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWThere 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 thetherein [Sec. 15, R.A. No. 8189]. deadline for voter registration to Oct. 31, 2009 (election was May 10, 2010, or more than 120Composition of the ERB [Sec. 15, R.A. No. days), was declared null and void because8189] 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 ElectionOfficer, the Commission shall designate an c. Validationacting Election Officer who shall serve as The process of taking the biometrics ofChairman of the Election Registration Board. In registered voters whose biometrics have notcase 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 BiometricsCommission shall designate any other Voter Registration].appointive civil service official from the samelocality as substitute. Voters who fail to submit for validation on or before the last day of filing of application forNo member of the Board shall be related to registration for purposes of the May 2016each 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 insucceeding elections, any of the newly elected Those deactivated may apply for reactivationcity or municipal officials is related to a member after the May 2016 elections following theof the board within the fourth civil degree of procedure provided in Sec. 28 of R.A. No. 8189consanguinity or affinity, such member is [Sec. 8, R.A. No. 10367].automatically disqualified to preserve theintegrity 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 PersonsThe body which conducts the election in the With the assistance of the Election Officer orpolling place of the precinct usually composed any member of an accredited citizen’s arms.of three (3) public school teachers appointedby the Commission [Sec. 3(o), R.A. No. 8189]. Physically Disabled Persons Application for registration may be preparedb. System of Continuing Registration of by:Voters 1. Any relative within the 4th civil degree ofThe personal filing of application of registration consanguinity or affinityof voters shall be conducted daily in the office 2. The Election Officer, orof the Election Officer during regular office 3. Any member of an accredited citizen’shours [Sec. 8, R.A. No. 8189]. arm
Exception (when registration is Note: Definition of disabled voter under theprohibited): Within 120 days before a regular Automated Election System (AES): A person Page 284 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWwith impaired capacity to use the AES [Sec. The application for reactivation may be filed2(11), R.A. No. 9369]. any time but not later than one hundred twenty (120) days before a regular election and ninetyBook of Voters (90) days before a special election.The compilation of all registration records in aprecinct [Sec. 3(c), R.A. No. 8189]. The Election Officer shall submit said application to the Election Registration BoardList of Voters for appropriate action.An enumeration of names of registered votersin a precinct duly certified by the Election In case the application is approved, theRegistration Board for use in the election [Sec. Election Officer shall retrieve the registration3(c), R.A. No. 8189]. record from the inactive file and include the same in the corresponding precinct book ofThe ERB shall prepare and post a certified list voters. Local heads or representatives ofof voters 90 days before a regular election and political parties shall be properly notified on60 days before a special election [Sec. 30, R.A. approved applications.No. 8189]. Ground for Specific Mode ofCopies of the certified list along with a certified Deactivation Reactivationlist of deactivated voters categorized byprecinct per barangay, within the same period Sec. 27, R.A. No. 8189shall be posted in the office of the ElectionOfficer and in the bulletin board of each Any person who has Right to vote iscity/municipal hall. Upon payment of the fees been sentenced by automaticallyas fixed by the Commission, the candidates final judgment to reacquired uponand 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 certifiede. 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 having1. Deactivation caused/committed:Process of deactivating the registration ofcertain persons, removing their registration (i) any crimerecords from the corresponding precinct book involving disloyaltyof voters and placing the same in the inactive to the dulyfile, properly marked “deactivated” and dated in constitutedindelible 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 anddeactivated may file with the Election Officer a firearms laws, orsworn application for reactivation of hisregistration in the form of an affidavit statingthat the grounds for the deactivation no longerexist. Page 285 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAW
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 nationalsecurity The Local Civil Registrar shall: i. Submit each month a certified list ofExcept: If full civil persons who died during the previousand political rights is month to the Election Officer of the placerestored in where the deceased are registered or inaccordance with the absence of information thereof, to thelaw. Election Officer of the city or municipality of the deceased's residence asAny person appearing in his death certificate.declared by ii. Furnish a copy of this list to the nationalcompetent authority central file and the proper provincial file.to be insane orincompetent The Election Officer shall: i. Post in the bulletin board of his office aException: If such list of those persons who died whosedisqualification has registrations were cancelledbeen subsequently ii. Furnish copies thereof to the local headsremoved by a of the political parties, the nationaldeclaration of a central file, and the provincial fileproper authority thatsuch person is no 4. Annulment of Book of Voterslonger insane or The COMELEC shall, upon verified petition ofincompetent 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 1996preceding regular 3. Prepared through fraud, bribery, forgery,elections as shown impersonation, intimidation, force, or anyby their voting similar irregularity; orrecords 4. Contains data that are statisticallyNote: For this improbablepurpose, regularelections do not No order, ruling or decision annulling a book ofinclude the voters shall be executed within 90 days beforeSangguniang an election [Sec. 39, R.A. No. 8189].Kabataan (SK)elections 5. New Voters A qualified voter shall be registered in theAny person whose permanent list of voters in a precinct of the cityregistration has or municipality wherein he resides to be able tobeen ordered vote in any election [Sec. 10, R.A. No. 8189].excluded by theCourt 6. Transfer of Residence The precinct assignment of a voter in theAny person who has permanent list of voters shall not belost his Filipino changed/altered/transferred to anothercitizenship precinct without the express written consent of the voter. Provided, however, that the voter shall not unreasonably withhold such consent. Page 286 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWAny violation thereof shall constitute an Election Periodelection 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 applywith the Election Officer of his new residence Exception: Special cases, when otherwisefor the transfer of his registration records. The fixed by the COMELEC.application for transfer of registration shall besubject to the requirements of notice and Precincthearing and the approval of the Election The basic unit of territory established by theRegistration 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 thevoter's registration record to the Election Polling PlaceOfficer of the voter's new residence [Sec. 12, The place where the Board of ElectionR.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 immediatelynotify the Election Officer in writing. If the Voting Centerchange of address involves a change in The building or place where the polling place isprecinct, the Board shall transfer his located [Sec. 3(m), R.A. No. 8189].registration record to the precinct book ofvoters of his new precinct and notify the voterof his new precinct [Sec. 13, R.A. No. 8189]. D. Inclusion and Exclusion ProceedingsChallenges to Right to RegisterOppositions to contest a registrant's 1. Jurisdiction in Inclusion andapplication 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 ofa registered political party The Municipal and Metropolitan Trial Courts shall have original and exclusive jurisdictionForm: 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 theElection Registration Board. Should the The regional trial court shall decide the appealsecond 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 becomethe next following working day. final and executory. No motion for reconsideration shall be entertained.The hearing on the challenge shall be heard onthe 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWregistered, specifying the ground of the voters’ Petition for Petition fordisqualification.” Hence, the trial court has no Inclusion of Voters Exclusion of Voterspower 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 asprovided 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 theGenerally, no res judicata: A decision in an application and challenged voter,exclusion or inclusion proceeding, even if final proof of service of accompanied byand unappealable, does not acquire the nature notice of his petition proof of notice to theof res judicata [Domino v. COMELEC, supra]. upon the Board. Board and to the challenged voter.Exception: The decision is res judicata as tothe right to remain in the list of voters or for Period to Decidebeing excluded therefrom for the particularelection in relation to which the proceedings Within fifteen (15) Within ten (10) dayshad been held had been held [Domino v. days after its filing from its filingCOMELEC, supra]. Procedure if Petition is Approved2. 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
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Petition for Petition for Petition for Petition forInclusion 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 afterMR, with the proper of the overseas its filing, but not its filing, but not laterMTC in the City of voting period with the later than 120 days than 120 days beforeManila or where the proper MTC in the before the start of the start of theoverseas voter City of Manila or the overseas voting overseas votingresides in the where the overseas period. period.Philippines, at the voter resides in thepetitioner’s option Philippines, at the Should the Court fail Should the Court fail petitioner’s option. to render a decision to render a decisionNote: If the within the within the prescribedapplication has prescribed period, period, the ruling ofbeen disapproved, the RERB ruling the RERB shall bethe applicant or his shall be considered considered affirmed.authorized affirmed.representative mayfile a Motion forReconsideration(MR) before theResident ElectionRegistration Board(RERB) within aperiod of five (5)days from receipt ofthe notice ofdisapproval. TheMR shall be decidedwithin five (5) daysafter its filing but notlater than onehundred twenty(120) days beforethe start of theoverseas votingperiod. Theresolution of theResident ElectionRegistration Board(RERB) shall beimmediatelyexecutory, unlessreversed or setaside by the Court.
Who may file
Applicant Any interested person
Period to Decide Page 289 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWE. Local and Overseas Overseas Voter Citizen of the Philippines who is qualified toAbsentee Voting [Sec. 3(a), R.A. register and vote under this Act, not otherwiseNo. 9189, The Overseas disqualified by law, who is abroad on the day ofAbsentee 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, TheOverseas Voting Act of 2013] An overseas voter is presumed to be abroad until she/he applies for transfer of her/his1. General Rule registration records or requests that her/hisA 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 Elections2. 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 isd. 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 registrationOverseas Voting and/or certification as overseas voters,Process by which qualified citizens of the including the deactivation, reactivation andPhilippines 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAW3. 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 special4. 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 circ*mstances [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 thedisqualification under RA No. 9189 of animmigrant or a permanent resident who isrecognized as such in the host country unlesshe/she executes, upon registration, an affidavitprepared for the purpose by the Commissiondeclaring that:
Page 291 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWG. Escorted VotingVoting 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAW
II. CANDIDACY 5. Resident of the Philippines for at least two (2) years immediately preceding election dayA. Qualifications andDisqualifications of Candidates c. For Members of the House of Representatives [Sec. 6, Art. VI, 1987Candidate Constitution]Any person who files his certificate of 1. Natural-born citizencandidacy within the prescribed period shall 2. 25 years old on election dayonly be considered as a candidate at the start 3. Able to read and writeof the campaign period for which he filed his 4. Registered voter in district in which hecertificate of candidacy [Sec. 15, R.A. No. shall be elected9369]. 5. Resident thereof for not less than one year immediately preceding election dayThis 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 Philippinesparticipate 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 districtdisqualified before the start of the campaign where he intends to be electedperiod [COMELEC Res. 8758 (2010)]. iii. Resident therein for at least one year immediately preceding election day iv. Able to read and write Filipino or any1. Qualifications other local language or dialectQualifications prescribed by law are v. Age requirement: [See table below]continuing requirements and must bepossessed for the duration of the officer's On Citizenshipactive tenure [Frivaldo v. COMELEC, supra; The law does not specify any particular date orLabo v. COMELEC, supra]. time when the candidate must possess citizenship unlike that for residence and age. ItConstitutional Officers must be possessed upon proclamation or ona. 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 residenceb. For Senator [Sec. 3, Art. VI, 1987 somewhere; (b) where once established, thatConstitution] 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAW
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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAW2. Disqualifications 4. Violated election rules and regulations on election propagandaUnder 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 orSec. 12. Disqualifications to be a disadvantage upon any person or ofcandidate and to hold any office the immediate members of hisAny 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, disbursem*nt orNote: 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 anSec. 68. Disqualifications from continuing immigrant to a foreign country [unlessas a candidate, or if he has been elected, he has waived such status infrom holding the office accordance with the residencyAny candidate who, in an action or protest in requirement for the concerned positionwhich he is a party is declared by final decisionof 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWb. Removed from office as a result of an knowledge by the fleeing subject ofadministrative case either an already instituted indictmentThis disqualification does not retroactively or of a promulgated judgment ofapply 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 toc. Convicted by final judgment for violating reside abroad and continue to avail of thethe oath of allegiance to the Republic of the same right after the effectivity of this CodePhilippines g. Insane or feeble-mindedd. Dual citizenshipDual citizenship as a disqualification must refer Disqualification in Special Electionto citizens with dual allegiance. For candidates In addition to the disqualifications mentioned inwith mere dual citizenship, the filing of Secs. 12 and 68 of the Omnibus Election Codecertificate of candidacy is considered as an and Sec. 40 of R.A. No. 7160, otherwise knownelection of Filipino citizenship and renunciation as the Local Government Code, whenever theof foreign citizenship [Mercado v. Manzano, evidence of guilt is strong, the followingsupra]. persons are disqualified to run in a special election called to fill the vacancy in an electiveFor a natural born Filipino, who reacquired or office, to wit:retained his Philippine citizenship under R.A. i. Any elective official who has resignedNo. 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 personsBased on jurisprudence, the mere filing of aspiring to become a candidate or thatcertificate 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 towho reacquired/retained Filipino citizenship eliminate all other potential candidateunder R.A. No. 9225. [Sec. 4, R.A. No. 8295]
While the act of using a foreign passport is not B. Filing of Certificates ofone of the acts constituting renunciation andloss of Philippine citizenship, it is nevertheless Candidacyan act which repudiates the very oath of No person shall be eligible for any electiverenunciation required for a former Filipino public office unless he files a sworn certificatecitizen who is also a citizen of another country of candidacy within the period fixed hereinto be qualified to run for a local elective position [Sec. 73, B.P. Blg. 881].[Maquiling v. COMELEC, G.R. 195649 (2013)]. Certificate of Candidacye. Fugitive from justice in criminal and non- A certificate of candidacy is in the nature of apolitical 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWthe name of the political party to which he If he files a certificate of candidacy for morebelongs, if he belongs to any, and his post- than one office he shall not be eligible foroffice 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, theBy who: The certificate of candidacy shall be person who has filed more than one certificatefiled 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 forWhen: Any day from the commencement of filing of certificates of candidacy; andthe election period but not later than the day ii. Cancel the certificate of candidacy for thebefore the beginning of the campaign period. In other office/s [Sec. 73, B.P. Blg. 881]cases of postponement or failure of election, noadditional certificate of candidacy shall be Ministerial Duty of COMELECaccepted except in cases of substitution of General Rule: The COMELEC shall have thecandidates ministerial duty to receive and acknowledge receipt of the certificates of candidacy provided1. Effect of Filing said certificates are: under oath and contain all the required data and in the form prescribed bya. Appointive Officials the Commission [Sec. 76, B.P. Blg. 881].Officials holding appointive offices includingactive members of the AFP and officers of COMELEC has no discretion to give or not toGOCCs shall be considered ipso facto give due course to a certificate of candidacyresigned 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 theAny person holding an elective office or face of the certificate of candidacy:position shall not be considered resigned upon i. Nuisance candidatesthe filing of his certificate of candidacy for the ii. Petition to deny due course to or cancel asame 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 ofCandidacy and Nomination of Official The Court also held that even without a petitionCandidates of Registered Political Parties in to deny course to or cancel a certificate ofConnection with the May 10, 2010 National and candidacy, the COMELEC is under a legal dutyLocal Elections]. to cancel the COC of anyone suffering from the accessory penalty of perpetual specialThe SC upheld the validity of the COMELEC disqualification to run for public office by virtueResolution in Sec. 67, B.P. Blg. 881. The Court of a final judgment of conviction. The finaldeemed the rule that elective officials judgment of conviction is notice to theautomatically resigned from office upon filing of COMELEC of the disqualification of the convicttheir 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 equalprotection, the Court found substantial Lone Candidate in a Special Electiondistinctions among appointive and elective Upon the expiration of the deadline for the filingofficials [Quinto v. COMELEC, G.R. No. of the certificates of candidacy in a special189698 (2010)]. election called to fill a vacancy in an elective position other than for President and ViceEffect of Filing of Two (2) Certificates of President, when there is only one (1) qualifiedCandidacy (COC) candidate for such position, the lone candidateNo person shall be eligible for more than one shall be proclaimed elected to the position byoffice to be filled in the same election. proper proclaiming body of the Commission on Elections without holding the special election Page 297 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWupon certification by the Commission on c. The withdrawal of a certificate ofElections that he is the only candidate for the candidacy does not necessarily renderoffice 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 certificateIn the absence of any lawful ground to deny itself be subsequently withdrawndue course or cancel the certificate of [Monroy v. CA, G.R. No. L-23258candidacy in order to prevent such (1967)].proclamation, as provided for under Secs. 69and 78 of Batas Pambansa Blg. 881 also Substitutionknown as the Omnibus Election Code of the Grounds: If after the last day for filing of thePhilippines, the candidate referred to in the certificates of candidacy, an official candidatepreceding paragraph shall assume office not of a registered political partyearlier than the scheduled election day… [Sec. a. Dies3, R.A. No. 8295] b. Withdraws, or c. Is disqualified for any cause2. Substitution and Withdrawal ofCandidates He may be substituted by a candidate belonging to and nominated by the sameWithdrawal of Certificate of Candidacy political party.A person who has filed a certificate ofcandidacy may, prior to the election, withdraw When:the same by submitting to the office concerned a. The substitute candidate nominated bya written declaration under oath [Sec. 73, B.P. the political party concerned may file hisBlg. 881]. certificate of candidacy for the office affected in accordance with theProcedure 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 theAny person who withdraws shall not be eligible Commission [Sec. 77, B.P. Blg. 881].whether as a substitute candidate or not, forany other position. Note: For there to be a valid substitution of a candidate, the latter must have filed a validEffects 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWNo substitute shall be allowed for any to the respondent candidate together with aindependent candidate [Recabo, Jr. v. copy of the petition and its enclosures, if any.COMELEC, G.R. No. 134293 (1999); ComelecResolution No. 10430]. 3. The respondent shall be given three (3) days from receipt of the summons within which to file3. Nuisance Candidates his verified answer to the petition, serving copyThe Commission may motu proprio or upon a thereof upon the petitioner.verified petition of an interested party, refuse togive due course to or cancel a certificate of Grounds for a motion to dismiss may be raisedcandidacy if it is shown that said certificate has as affirmative defenses.been filed to put the election process inmockery or disrepute or to cause confusion 4. The Commission may designate any of itsamong the voters by the similarity of the names officials who are lawyers to hear the case andof the registered candidates or by other receive evidence. The proceeding shall becirc*mstances or acts which clearly summary in nature.demonstrate that the candidate has no bona a. In lieu of oral testimonies, the partiesfide intention to run for the office for which the may be required to submit positioncertificate of candidacy has been filed and thus papers together with affidavits orprevent a faithful determination of the true will counter-affidavits and otherof the electorate [Sec. 69, B.P Blg. 881]. documentary evidence. b. The hearing officer shall immediatelyGrounds 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-fourProcedure [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 electionSec. 5. Procedure in Cases of Nuisance registrars, boards of election inspectors andCandidates the general public in the political subdivision concerned.1. A verified petition to declare a duly registeredcandidate 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWRules on Counting Votes Cast for ii. the votes cast for him shall not beNuisance Candidates counted.1. If the person declared as a nuisancecandidate and whose certificate of candidacy b. Hence, generally, if Candidate X hashas been cancelled or denied due course does already been disqualified before electionnot have the same name and/or surname as a day but still garnered the highest numberbona fide candidate for the same office - the of votes, those votes are considered asvotes cast for such nuisance candidate shall be stray votes. The candidate with the nextdeemed 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 candidacyhas been cancelled or denied due course has 2. If the disqualification is not yet final onthe 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 finalshall not be considered stray but shall be judgment before any election to becounted and tallied for the bona fide candidate. disqualified and he is voted for and receives the winning number of votes3. However, if there are two or more bona fide in such election:candidates with the same name and/or i. the Court or COMELEC shallsurname as the nuisance candidate - the votes continue with the trial and hearingcast for the nuisance candidate shall be of the action, inquiry, or protest;considered as stray votes [Comelec Resolution andNo. 9599, amending Sec. 5 of Rule 24 of the ii. upon motion of the complainant orComelec Rules of Procedure, as amended by any intervenor, may during theComelec Resolution No. 9523]. pendency thereof, order the suspension of the proclamation ofA petition to cancel or deny a COC under such candidate whenever theSection 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 ofa COC of a nuisance candidate cannot be 3. If the disqualification is adjudged andequated 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 isGovernment Code. actually the first placer among the qualified candidates, if disqualified due4. Effect of Disqualification to Sec. 75 or 78 (COC void ab initio).
Disqualification under Sec. 68 differs from Maquiling v. COMELEC [G.R. No. 195649grounds 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 aDisqualification (under Sec. 68, among others) candidate’s disqualification and still cast theirdoes not void a certificate of candidacy (COC), votes in favor said candidate, then the eligiblei.e., the candidate is merely prohibited from candidate obtaining the next higher number ofcontinuing as a candidate. In contrast, votes may be deemed elected.Cancellation (under Sec. 78) results in theCOC being void ab initio, i.e., the person was The electorate’s awareness of the candidate’snever a valid candidate. disqualification is not a prerequisite for the disqualification to attach to the candidate. TheRules if the Candidate is Disqualified very existence of a disqualifying circ*mstance1. If the disqualification becomes final before makes the candidate ineligible. Knowledge byelection 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWThat the disqualified candidate has alreadybeen proclaimed and has assumed office is ofno moment. The subsequent disqualificationbased on a substantive ground that existedprior to the filing of the certificate of candidacyvoids not only the COC but also theproclamation.
Note: The purpose of a disqualificationproceeding is to prevent the candidate (a) fromrunning or, if elected, (b) from serving, or (c) toprosecute him for violation of the election laws[Ejercito v. COMELEC, G.R. No. 212398(2014)].
Rule if the COC is CancelledA cancelled certificate of candidacy cannotgive rise to a valid candidacy, and much less tovalid votes. Whether the CoC is cancelledbefore or after the elections is immaterialbecause the cancellation on such groundmeans he was never a candidate from the verybeginning, his certificate of candidacy beingvoid 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 ineligibleshould be limited to situations where thecertificate of candidacy of the first-placer wasvalid at the time of filing but subsequently hadto be cancelled because of a violation of lawthat took place, or a legal impediment that tookeffect, after the filing of the certificate ofcandidacy.
If the certificate of candidacy is void ab initio,then legally the person who filed such a voidcertificate of candidacy was never a candidatein the elections at any time. All votes for such anoncandidate are stray votes and should notbe counted. Thus, such noncandidate cannever be a first-placer in the elections[Jalosjos, Jr. v. COMELEC, supra].
Page 301 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAW
III. CAMPAIGN 2. Regulations Regulation of Speech in the Context of Electoral Campaigns [The Diocese ofA. Concept Bacolod v. COMELEC, G.R. No. 205728 (2015)]1. DefinitionThe term "election campaign" or "partisan a. If made by candidates or the members ofpolitical activity" refers to an act designed to their political parties or their political parties itpromote the election or defeat of a particular may be regulated as to time, place, andcandidate or candidates to a public office [Sec. manner.79, B.P. Blg. 881]. b. If made by persons who are not candidatesIt 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 endorsem*nt 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 restrictiveCampaign 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWb. Members of the House of 6. Right to ReplyRepresentatives, Elective Local All registered parties and bona fide candidatesGovernment Officials: 45 days before the day shall have the right to reply to chargesof election published against them. The reply shall bec. Barangay Election: 15 days before the day given publicity by the newspaper, televisionof election and/or radio station which first printed or aired the charges with the same prominence or in theIn the preparation of the election calendar, the same page or section or in the same time slotCommission may exclude the day before the as the first statement [Sec. 10, R.A. No. 9006].day of the election itself, Maundy Thursday andGood 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" airtimecampaign period. The former includes the 30 limits (i.e. applying the limits to all TV and radiodays after election while the latter can only stations taken as a whole) unreasonablyinclude the 90 days prior to election day [De restricts the guaranteed freedom of speechLeon]. 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 advertisem*nts [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 advertisem*nt broadcast for any candidate orb. TV advertisem*nts [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 advertisem*nts [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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWtelevision station or any public forum during the The holding of exit polls and the disseminationcampaign 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 SurveysThe measurement of opinions and perceptions 8. Application for Rallies,of the voters as regards a candidate'spopularity, qualifications, platforms or a matter Meetings and Other Politicalof public discussion in relation to the election, Activityincluding voters' preference for candidates or All applications for permits must immediatelypublicly discussed issues during the campaign be posted in a conspicuous place in the city orperiod. municipal building, and the receipt thereof acknowledged in writing.Note: Sec. 5.4 of R.A. No. 9006 providing thatsurveys affecting national candidates shall not Applications must be acted upon in writing bybe published 15 days before an election and local authorities concerned within 3 days aftersurveys 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 orfollowing 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWperiod, and unlawful acts applicable to such any of its divisions, subdivisions orcandidate 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 ofan election offense only for acts done during the election, of loans or otherthe campaign period, not before. Before the accommodations in excess of P100,000 bystart of the campaign period, such election the government or any of its divisions,offenses cannot be committed and any subdivisions or instrumentalities includingpartisan political activity is lawful. GOCCs; f. Educational institutions which haveC. Contributions received grants of public funds amountingGift, 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 any1. Prohibited Contributions candidate from the start of the election periodNo contribution for purposes of partisan up to and including election day:political activity shall be made directly or i. Dancesindirectly by any of the following [Sec. 95 and ii. Lotteries96, B.P. Blg. 881]: iii. co*ckfights iv. GamesFrom Public or private financial institutions v. Boxing boutsprovided, however, that nothing herein shall vi. Bingoprevent the making of any loan: vii. Beauty contestsa. 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, orb. 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 orc. 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 Sundaysd. Grantees of exemptions, incentives, or and/or other designated collection days similar concessions by the government or
Page 305 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAW3. Prohibited Donations [Sec. i. Bear and be identified by the reasonably legible or audible104. B.P. Blg. 881] words “political advertisem*nt paid for” followed by the true andWhether 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 ofMade 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 outdoortreasurers, agents or representatives of advertisem*nts donated to thepolitical party candidate or political party shall not be printed, published,During campaign period, day before and day of broadcast or exhibited without thethe 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 ElectionD. Lawful and Prohibited Code or the Fair Election Act of 2001Election 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 advertisem*nts in print or propaganda broadcast media ii. Prevent the distribution of lawful election propaganda
Page 306 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAW 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 registeredNote: Sec. 85 “Prohibited ElectionPropaganda” of B.P. Blg. 881 was repealed by b. Other candidates: PHP 3 for every voterSec. 14 of R.A. No. 9006. currently registered in the constituency where he filed his certificate of candidacyE. Limitations on Expenses Exception: A candidate without any political party and without support from any political1. 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 advertisem*nts; 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAW1. The person elected to any public officecannot enter upon the duties of his officeNote: The same prohibition applies if thepolitical party which nominated the winningcandidate fails to file the statements.
2. Imposition of administrative fines (exceptcandidates 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 municipalelection registrar to advise in writing, bypersonal delivery or registered mail, within five(5) days from the date of election all candidatesresiding in his jurisdiction to comply with theirobligation to file their statements ofcontributions and expenditures.
Page 308 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAW
IV. REMEDIES AND has been filed and thus prevent a faithful determination of the true will ofJURISDICTION the electorate
A. Petition Not to Give Due B. Petition for DisqualificationCourse or Cancel a Certificate An action or protest filed against any candidate where he/she may be declared by finalof Candidacy decision of a competent court guilty of, or found by the Commission of being disqualified based1. For any False Material on the grounds below. In effect, he/she shall beRepresentation [Sec. 78, OEC] disqualified from continuing as a candidate, orA verified petition to deny due course or to if he/she has been elected, from holding thecancel a certificate of candidacy. office.
Grounds: Any material representation 1. Grounds under Par. 1, Sec. 68,contained in the COC as required under OECSection 74 hereof is false. a. Given money or other material consideration to influence, induce or corruptThe material misrepresentation contemplated the voters or public officials performingby 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 amountfalse 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 contributionmisinform, or hide a fact which would otherwise prohibited under Sections 89, 95, 96, 97 andrender a candidate ineligible." In other words, it 104; ormust be made with an intention to deceive the e. Violated any of Sections 80, 83, 85, 86, andelectorate as to one’s qualifications for public 261, paragraphs d, e, k, v, and cc,office [Villafuerte v. COMELEC, G.R. No. subparagraph 6206698 (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 OECcandidacy Any person who is a permanent resident of or an immigrant to a foreign country, unless saidHow decided: After due notice and hearing, person has waived his status as permanentnot later than fifteen days before the election resident or immigrant of a foreign country in accordance with the residence requirement2. 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, OECmotu proprio decision of the Commission to a. Any person who has been declared bydeny due course or cancel a certificate of competent authority insane or Incompetentcandidacy if it is shown that said certificate has b. Any person who has been sentenced bybeen 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 circ*mstances 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWException: if the person has been given Note: In Francisco v. COMELEC, supra, theplenary pardon or granted amnesty court rectified its ruling in Poe-Llamanzares v. COMELEC [G.R. Nos. 221697 & 221698-700Note: The disqualifications to be a candidate (2016)] where it held that to disqualify aunder 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, LGCfor Local Elective Positions Groundsa. 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. Nuisanceb. 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 treatede. 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 neverf. 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. SubstitutionA prior court judgment is not required beforethe remedy under Sec. 68 of the OEC canprosper. This is highlighted by the provision Allowed (Rule of Not alloweditself, which contemplates two scenarios: first, succession shall be (Candidate with thethere is a final decision by a competent court observed) second highestthat the candidate is guilty of an election number of votes shalloffense and second, it is the Commission itself assume office)that found that the candidate committed any ofthe enumerated prohibited acts. Noteworthy isthat in the second scenario, it is not required Period for Filingthat there be a prior final judgment; it issufficient that the Commission itself made the Any time before i. For false materialdetermination. The conjunction "or" separating proclamation of representation in the"competent court" and "the Commission" could the winning COC: within 25 daysonly mean that the legislative intent was for candidate from filing of COCboth bodies to be clothed with authority toascertain whether or not there is evidence that ii. For nuisancethe respondent candidate ought to be candidates: within 5disqualified [Francisco v. COMELEC, G.R. No. days from the last230249 (2018)]. day of filing COCs
Page 310 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWC. Failure of Election Versus 2 days from receipt of the notice of hearing, any interested party may fileAnnulment 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 delegateDeclaration of failure of election the hearing of the case and theIt is neither an election case nor a pre- reception of evidence to any of itsproclamation controversy [Borja v. COMELEC, officials who are members of theG.R. No. 133495 (1996)]. Philippine Bar. 5. The COMELEC then decides whetherThe COMELEC does not exercise its quasi- to grant or deny the petition. This liesjudicial functions when it declares a failure of within the exclusive prerogative of theelections pursuant to R.A. No. 7166. Rather, COMELEC.the COMELEC performs its administrativefunction 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, afterThe grounds for failure of election clearly due notice and hearing, whereby all interestedinvolve questions of fact. It is for this reason parties are afforded equal opportunity to bethat they can only be determined by the heard postpones the election upon a findingCOMELEC 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. ViolenceJurisdiction b. TerrorismThe postponement, declaration of failure of c. Loss or destruction of electionelection and the calling of special elections paraphernalia or recordsshall be decided by the Commission sitting en d. Force majeurebanc by a majority vote of its members. Thecauses for the declaration of a failure of Any serious cause analogous to the foregoingelection may occur before or after the castingof votes or on the day of the election [Sec. 4, 2. As a result of the above grounds, the holdingR.A. No. 7166]. of a free, orderly and honest election should become impossible in any political subdivisionConditionsThe 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 causesProcedure 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 circ*mstances, 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 circ*mstances, within Page 311 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAW3. In any of such cases, the failure or who had induced or actually perpetuated thesuspension would affect the result of the commission of the acts complained of andelection. demonstrated (2) that those incidents were part of a scheme to frustrate the free expression ofInstances 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 petitionto call for special elections. In case of Failure of Election vs. Annulment ofpostponement, the Commission may take Election Results [Abayon v. HRET, supra]action motu proprio. In both cases, there shall Failure of Election Annulment ofbe due notice and hearing. After which, the Election ResultsCommission shall call for the holding orcontinuation of the election not held, Who Exercisessuspended or which resulted in a failure toelect. Exercise of Incident of the COMELEC’s judicial function ofSpecial Elections may also be Called in administrative electoral tribunalsthe Following Cases [Sec. 7, OEC] function1. In case a vacancy arises in the BatasangPambansa 18 months or more before a regular Scopeelection 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 the2. In case of the dissolution of the Batasang or political unit election contestPambansa 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 whoThe date of the special election shall be the elections, which among thereasonably close to the date of the election not were not held or candidates garneredheld, suspended or which resulted in a failure were suspended, or a majority of the legalto elect. The date shall not be later than 30 if there was one, votes castdays after the cessation of the cause of such resulted in a failurepostponement or suspension of the election or to electfailure to elect.
2. Annulment of Election Results D. Pre-Proclamation ControversyRequisites [Abayon v. HRET, supra] Any question pertaining to or affecting the1. 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 theestablished (1) that the protestee was the one election results); Page 312 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAW 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 ProceedingsThe following shall be proper issues that may Heard summarily by the COMELEC after duebe 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 mayIn Rule 3, Sec. 1 of COMELEC Resolution No. be initiated in the board or directly with the8804 (2010) there are only two issues covered Commission in accordance with Section 19in 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-proclamationJurisdiction [Sec. 2, Rule 3, COMELEC controversies shall be adopted when it appearsResolution No. 8804] that any certificate of canvass or supportingCOMELEC has exclusive jurisdiction in pre- statement of votes by city/municipality or byproclamation controversies arising from precinct bears erasures or alterations whichnational, regional or local elections. may cast doubt as to the veracity of the number of votes stated herein and may affect the resultA pre-proclamation controversy may be raised of the election [Sec. 30, R.A. No. 7166 asby 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 candidateCommission. concerned or his party 2. Congress or the Commission en banc,Issues affecting the composition or as the case may be, shall, for the soleproceedings of the Boards may be initiated by purpose of verifying the actual numberfiling 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 theIf the petition is filed directly with the Board, its election returns submitted to itdecision may be appealed to the Commissionwithin three (3) days from issuance thereof. It is clear from Section 15 of R.A. No. 7166 thatHowever, if commenced directly with the "pre-proclamation cases are not allowed in Page 313 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWelections for President, Vice-President, 1. Illegal Composition of theSenator and Member of the House ofRepresentatives.'' What is allowed is the Board of Canvasserscorrection 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 circ*mstances, any of thethe errors must appear on the face of the members do not possess legal qualificationscertificates of canvass or election returns and appointments. The information technologysought to be corrected and/or objections capable person required to assist the BOC bythereto must have been made before the board R.A. No. 9369 shall be included as amongof canvassers and specifically noted in the those whose lack of qualifications may beminutes 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 manifesterrors is no longer part of the grounds for pre- 2. Illegal Proceedings of theproclamation controversy as per COMELEC Board of CanvassersReso 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 andallowed only as an exception to the prohibition manipulated as when any of the followingunder Section 15 of R.A. No. 7166, as circ*mstances 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 theand 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 of3. 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 as5. 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 of6. 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWProcedure for Contested 9. Within five (5) days therefrom the COMELEC en banc shall render itsComposition 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. Upona. In case the petition is filed before the receipt of the petition by the COMELEC, theBOC: 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 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWEffect of Proclamation of Winning the plurality of the legal votes and therefore isCandidate 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 andassumption into office by the candidate whose General Ruleelection is contested. The remedy is an The filing of an election protest or a petition forelection protest before the proper forum. quo warranto precludes the subsequent filing of a pre-proclamation controversy, or amountsHowever, the prevailing candidate may still be to the abandonment of one earlier filed, thusunseated even though he has been proclaimed depriving the COMELEC of the authority toand 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 improperlythe proclamation is no proclamation at all and constituted;the proclaimed candidate's assumption of 2. Quo warranto was not the properoffice cannot deprive the COMELEC of the remedy;power to declare such nullity and annul the 3. What was filed was not really a petitionproclamation. 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 orProclamation [Sec. 4, Rule 4, COMELEC an election protest was expresslyResolution No. 8804] made without prejudice to the pre-If the illegality of the proceedings of the BOC is proclamation controversy or wasdiscovered after the official proclamation of the made ad cautelam; andsupposed results, a verified petition to annul b. The proclamation was null and voidthe proclamation may be filed before the [Samad v. COMELEC, supra]COMELEC within ten (10) days after the day ofproclamation. Nature Summary proceeding of a political characterUpon receipt of the verified petition, the Clerk [Gardiner v. Romulo, G.R. No. L-8921 (1914)]of the Commission shall have the samedocketed and forthwith issue summons to the Purposeparties to be affected by the petition, with a To ascertain the candidate lawfully elected todirective for the latter to file their answer within office [De Castro v. Ginete, G.R. No. L-30058five (5) days from receipt. (1969)]
Thereafter the case shall be deemed submitted Laws governing election contests must befor resolution, which shall not be later than liberally construed to the end that the will of theseven (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. 157249E. Election Contest (2003)].A contest between the defeated and winningcandidates on the ground of frauds orirregularities in the casting and counting of theballots, or in the preparation of the returns. Itraises the question of who actually obtained
Page 316 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAWKinds 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 votershall be filed with the Commission by anycandidate who was voted for in the same office When to File: Within 10 days after theand who Commission by any candidate who proclamation of the results of the electionwas voted for in the same office and who Groundsreceived the second or third highest number of 1. Ineligibilityvotes or, in a multi-slot position, was among the 2. Disloyalty to the Republicnext four candidates following the last rankedwinner duly proclaimed, as reflected in the In quo warranto proceedings referring to officesofficial results of the election contained in the filled by election, what is to be determined isStatement of Votes. The party filing the protest the eligibility of the candidate elect, while in quoshall be designated as the protestant; the warranto proceedings referring to offices filledadverse 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 courtWho May File: A candidate who has duly filed cannot declare that the candidate occupyinga certificate of candidacy and has been voted the second place has been elected, even if hefor the same office were eligible, since the law only authorizes a declaration of election in favor of the personWhen: Within 10 days after the proclamation of who has obtained a plurality of votes, and hasthe results of the election presented his certificate of candidacy. In the second case, the court determines who hasNote: This prescriptive period is suspended been legally appointed and can and ought toduring the pendency of a pre-proclamation declare who is entitled to occupy the officecontroversy between the same parties [Nuval v. Guray, G.R. No. L-30241 (1928)].
Grounds Distinction between Election Protest and1. Fraud Quo Warranto [Lokin v. COMELEC, G.R. No.2. Terrorism 179431-32 and G.R. No. 180443 (2010)]3. Irregularities4. Illegal acts committed before, during, or Election Protest Quo Warranto after the casting and counting of votes Strictly a contest Refers to questionsPayment of Docket fee between the of disloyalty orProtestant has to pay a docket fee of P300 and defeated and ineligibility of thean additional docket fee if there is a claim for winning candidates winning candidatedamages. Failure to pay the basic docket fee based on grounds ofshall 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 theA sworn petition that can be filed by any voter majority of the legal protestant in placeto contest the election of any member of votes and thereforeCongress or local government official on the is entitled to holdground of ineligibility or of disloyalty to the the officeRepublic of the Philippines [Sec. 253, B.P. Blg.881]. Can only be filed by Can be filed by any a candidate who voterIt is a proceeding to unseat the respondent has duly filed afrom office but not necessarily to install the certificate of It is not considered apetitioner in his place [Samad v. COMELEC, contest where thesupra]. Page 317 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAW 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, 1987Execution 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 theTrial Courts to order execution pending appeal elections, returns and qualifications of allupon good reasons stated in a special order elective regional, provincial and city officialswhich 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 municipalallowed 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 themovant as it is an exception to the general rule COMELEC within 5 days from promulgationon execution of judgments. Following civil law or receipt of a copy thereof by the aggrievedjurisprudence, the reason allowing for party [Sec. 22, R.A. No. 7166]immediate execution must be of such urgency ii. The COMELEC shall decide the appealas to outweigh the injury or damage of the within 60 days after it is submitted forlosing party should it secure a reversal of the decision, but not later than 6 months afterjudgment on appeal [Camilian v. COMELEC, the filing of the appeal, which decision shallG.R. No. 124169 (1997)]. be final, unappealable and executory [Sec. 22, R.A. No. 7166].The trial court may grant a motion for executionpending appeal based on “valid and special 5. MTC: Over election contests involvingreasons.” 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 DamagesActual or compensatory damages may begranted in all election contests or in quowarranto proceedings in accordance with law[Sec. 259, B.P. Blg. 881].
Effect of Filing Petition to Annul or toSuspend the ProclamationThe filing with the Commission of a petition toannul or to suspend the proclamation of anycandidate shall suspend the running of theperiod within which to file an election protest orquo warranto proceedings [Sec. 248, B.P. Blg.881].
Page 318 of 412 UP Law Bar Operations Commission 2022 ELECTION LAW POLITICAL LAW Summary of Rules on JurisdictionElective Election Appeal CertiorariPosition Protest or Quo Warranto
President PET N/A SCand VicePresident
Senators SET N/A SC
Members HRET N/A SCof theHouse ofReps
Regional/ COMELE N/A SCProvincial C/CityOfficials
Municipal RTC COMELE SCOfficials C
Barangay MTC COMELE SCOfficials C
Page 319 of 412 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTSPOLITICAL LAW LOCAL GOVERNMENTS POLITICAL LAW
I. PRINCIPLES OF LOCAL Decentralization of Decentralization of Administration PowerAUTONOMY powers to political making the latter noA. 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 perform1. Autonomy & Decentralization; specific functions and responsibilities [Sec. 17, LGC].Devolution The principle of local autonomy under the 1987a. 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWof devolution of powers and of the lower local supervision over local governments. Provinces withgovernment unit’” [Tano v. Socrates, G.R. No. respect to component cities and municipalities, and110249 (1997), citing Sec. 5(a), LGC]. cities and municipalities with respect to component barangays, shall ensure that the acts of theirThe Constitution provides for political component units are within the scope of theirautonomy (and not merely administrative prescribed powers and functions.autonomy) for autonomous regions [CordilleraBroad 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 NationalAccountability Supervision ControlWhere there is no express power in the charterof a municipality authorizing it to adopt Overseeing; the Power of an officerordinances regulating certain matters which power or authority of to alter or modify orare specifically covered by a general statute, a an officer to see that nullify or set asidemunicipal ordinance, insofar as it attempts to subordinate officers what a subordinateregulate the subject which is completely perform their duties officer has done incovered by a general statute of the legislature, the performance ofmay be rendered invalid. Where the subject is his dutiesof statewide concern, and the legislature hasappropriated 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 mayreason advanced for this view is that such such action or step substitute theordinances are in excess of the powers granted as prescribed by law judgment of the latterto the municipal corporation [Batangas CATV to make them for that of the formerInc. v. CA, G.R. No. 138810 (2004)]. perform their duties.
Local Autonomy and Decision Making Supervising officials Officers in control layPolice power is the power to prescribe merely see to it that down the rules in theregulations to promote the health, morals, the rules are performance orpeace, education, good order, safety, and followed, but they accomplishment ofgeneral welfare of the people. As an inherent themselves do not an act. If these rulesattribute 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 theirState's policy to foster genuine and meaningful discretion to modify discretion, order thelocal autonomy, the national legislature or replace them. If act undone ordelegated the exercise of police power to local the rules are not redone by theirgovernment units (LGUs) as agents of the observed, they may subordinates or evenState. Such delegation can be found in Section order the work done decide to do it16 of the LGC, which embodies the general or redone, but only to themselveswelfare clause. Since LGUs exercise conform to suchdelegated police power as agents of the State, rules. They may notit is incumbent upon them to act in conformity prescribe their ownto the will of their principal, the State. manner of executionNecessarily, 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 nationalstatutes [City of Batangas v. Phil. ShellPetroleum Corp., G.R. No. 195003 (2017)]. c. Local Fiscal Autonomy 1987 Constitution, Section 5, Article X. Eachb. 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAW 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 nationalFiscal Autonomy and Self–Reliance: In order wealth and resources within their territorialto fully secure to the LGUs the genuine and jurisdiction [Sec. 18, LGC]meaningful autonomy that would develop theminto self-reliant communities and effective 2. Internal Revenue Allotmentspartners 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, asvested upon the LGUs the duties and functions determined by law, in the national taxes which shallpertaining to the delivery of basic services and be automatically released to them.facilities. Paragraph (c) of the same provisionprovides a categorical exception of casesinvolving nationally funded projects, facilities, General Ruleprograms and services. LGUs shall have a 40% share in the national internal revenue taxes based on the collectionThe essence of this express reservation of of the third fiscal year preceding the currentpower by the national government is that, fiscal year [Sec. 284(c), LGC].unless an LGU is particularly designated as theimplementing agency, it has no power over a Exceptionprogram for which funding has been provided When the national government incurs anby the national government under the annual unmanageable public sector deficit, thegeneral appropriations act, even if the program President is authorized to reduce the IRA toinvolves 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 ofadministrative autonomy, but also local fiscal a. Finance,autonomy. b. Internal and Local Government, and c. Budget and Management; andThis means that LGUs have the power to 3. Consultation withcreate their own sources of revenue in addition a. Heads of both Houses of Congress,to their equitable share in the national taxes andreleased by the national government, as well b. Presidents of the Liga [Sec. 284, LGC]as the power to allocate their resources inaccordance 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 toand local officials in turn have to work within the the respective treasurer on a quarterly basisconstraints thereof. They are not formulated at within 5 days after the end of each quarter, andthe national level and imposed on local which shall not be subject to any lien orgovernments, whether they are relevant to holdback that may be imposed by the nationallocal needs and resources or not. government for whatever purpose [Sec. 286(a), LGC].Local fiscal autonomy does not rule out anymanner of national government intervention by Sec. 4 of A.O. 372, withholding 10% of theway of supervision, to ensure that local LGUs' IRA "pending the assessment andprograms, fiscal and otherwise, are consistent evaluation by the Development Budgetwith national goals [Pimentel v. Aguirre, supra]. Coordinating Committee of the emerging fiscal situation" is invalid and unconstitutional. The1. Sources of LGU Funds “temporary” nature of the retention by thea. 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWSince 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 disapprovequalified by the words “as determined by law,” projects within the SSEZ is one such powerand not the release thereof, the plain over which the SBMA’s authority prevails overimplication 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 State2. 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 ofconjunction with Section 26 thereof. Thus, the local officials, and all other matters relating to theprojects 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, createprograms whose effects are among those special metropolitan political subdivisions, subject toenumerated in Sections 26 and 27, to wit, those a plebiscite as set forth in Section 10 hereof. Thethat: (1) may cause pollution; (2) may bring component cities and municipalities shall retain theirabout climatic change; (3) may cause the basic autonomy and shall be entitled to their owndepletion of non-renewable resources; (4) may local executives and legislative assemblies. The jurisdiction of the metropolitan authority that willresult in loss of crop land, rangeland, or forest hereby be created shall be limited to basic servicescover; (5) may eradicate certain animal or plant requiring coordination.species; and (6) other projects or programsthat may call for the eviction of a particular Section 12. Cities that are highly urbanized, asgroup of people residing in the locality where determined by law, and component cities whosethese will be implemented [Bangus Fry charters prohibit their voters from voting for provincial elective officials, shall be independent offisherfolk 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 voteAs to Subic Special Economic Zone (SSEZ): for elective provincial officials.Consultations are not required when the verylaw unambiguously provides that the LGUs donot retain their basic autonomy and identitywhen it comes to matters specified by the lawas falling under the powers, functions and Page 324 of 412 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAW2. Under the LGC respective constituents shall be strengthened in order to upgrade continually the quality of localLGC, Section 3. Operative Principles of leadership;Decentralization. The formulation andimplementation of policies and measures on local (k) The realization of local autonomy shall beautonomy shall be guided by the following operative facilitated through improved coordination of nationalprinciples: 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 respectivepowers, 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 viabilitygovernment unit an accountable, efficient, and of local autonomy as an alternative strategy fordynamic organizational structure and operating sustainable development; andmechanism that will meet the priority needs andservice 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 locallocal 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 appropriateappointing authority; C. Rules of Interpretation(d) The vesting of duty, responsibility, andaccountability in local government units shall be Rules of Interpretation of the provisions ofaccompanied with provision for reasonably the LGC [Sec. 5, LGC]adequate resources to discharge their powers and 1. Any provision on a power of a localeffectively carry out their functions; hence, they shallhave the power to create and broaden their own government unit shall be liberallysources 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 thereonproceeds of the utilization and development of the shall be resolved in favor of devolutionnational wealth within their respective areas; of powers and of the lower local government unit.(e) Provinces with respect to component cities andmunicipalities, and cities and municipalities with ● Any fair and reasonable doubt as to therespect to component barangays, shall ensure that existence of the power shall bethe acts of their component units are within the interpreted in favor of the localscope 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 construedconsolidate or coordinate their efforts, services, andresources for purposes commonly beneficial to strictly against the local government unitthem; enacting it, and liberally in favor of the taxpayer.(g) The capabilities of local government units, ● Any tax exemption, incentive or reliefespecially the municipalities and barangays, shall be granted by any local government unitenhanced by providing them with opportunities to pursuant to the provisions of this Codeparticipate actively in the implementation of nationalprograms 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 Codeenhance local autonomy not only by legislative shall be liberally interpreted to give moreenabling acts but also by administrative and powers to local government units inorganizational reforms; accelerating economic development and(i) Local government units shall share with the upgrading the quality of life for the peoplenational government the responsibility in the in the community.management and maintenance of ecological 4. Rights and obligations existing on the datebalance within their territorial jurisdiction, subject to of effectivity of this Code and arising out ofthe 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 theaccountability of local government units to their governed by the original terms and conditions of said contracts or the law in Page 325 of 412 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAW force at the time such rights were vested; D. Effectivity of LGC and5. 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
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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 executiveTHE NATIONAL department and legislative assemblies,GOVERNMENT both of which shall be elective and representative of the constituent politicalA. 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 ofprovinces, cities, municipalities and The organic act of autonomous regions shallgeographical 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 theenactment of an organic act by Congress with Page 327 of 412 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWB. 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 bythe Constitution is a simple majority of votesapproving the Organic Act in individualconstituent units.
A double majority in (1) all constituent units puttogether, (2) as well as in the individualconstituent units] is not required [Abbas v.COMELEC, supra].
Sole province cannot validly constitute anautonomous region: An autonomous regioncannot be created if only one provinceapproved of its creation in the plebiscite calledfor the purpose [Ordillo v. COMELEC, G.R. No.93054 (1990), on the plebiscite concerning theCordilleras].
Not all amendments require plebiscite: Onlyamendments to, or revisions of, the OrganicAct constitutionally essential to thecreation of autonomous regions—thoseaspects specifically mentioned in theConstitution which Congress must provide forin the Organic Act—require ratification througha plebiscite.
Rationale: If all amendments to the OrganicAct have to undergo the plebiscite requirementbefore becoming effective, this would hamperthe ARMM’s progress by impeding Congressfrom enacting laws that timely addressproblems as they arise in the region, as well asweighing down the ARMM government with thecosts that unavoidably follow the holding of aplebiscite [Kida v. Senate, G.R. No. 196271(2011)].
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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 comfortA. 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 welfareFour Categories of Powers Exercised by legislation geared towards state policies toLGUs 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 andWithin their respective territorial may be necessary to carry into effect andjurisdictions, LGUs shall ensure and discharge the powers and duties conferredsupport 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. 1507631. 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWaccomplishment of the purpose and not unduly 2. Eminent Domainoppressive on individuals NatureTwo-Pronged Test for an Ordinance to be It is the government's right to appropriate, inConsidered 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 LGUb. 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 compensationIllustrations of Valid Exercise of Police based on the fair market value of thePower 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 PolicePower● 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWPublic Use, Purpose, or Welfare Valid and Definite OfferThe very foundation of the right to exercise The offer must be complete, indicating witheminent domain is a genuine necessity and sufficient clearness the kind of contractthat necessity must be of a public character. intended and definitely stating the essentialMoreover, the ascertainment of the necessity conditions of the proposed contract. An offermust precede or accompany and not follow, the would require, among other things, a cleartaking of the land. Necessity does not mean an certainty on both the object and the cause orabsolute, but only a reasonable or practical consideration of the envisioned contract [Jesusnecessity, 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 condemningparty and the property owner consistent with The offer to buy shall be in writing, and mustsuch benefit [Masikip v. City of Pasig, G.R. No. specify the property sought to be acquired, the136349 (2006)]. reasons for its acquisition, and the price offered [Sec 35(a), LGC IRR].Modernly, there has been a shift from the literalto a broader interpretation of "public purpose" Requisites for the Immediate Entry by theor "public use" for which the power of eminent LGUdomain may be exercised. The old concept a. Filing of the complaint for expropriationwas that the condemned property must actually sufficient in form and substance; andbe used by the general public (e.g. roads, b. Deposit of an amount equivalent to 15% ofbridges, public plazas, etc.) before the taking the fair market value of the property to bethereof could satisfy the constitutional expropriated based on the current taxrequirement 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, thecontribute to the general welfare and the issuance of a writ of possession becomesprosperity of the whole community, like a resort ministerial. There is no need for a hearing forcomplex 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 PropertyOrdinance Requirement When private land is expropriated for aLGUs must pass an ordinance, not a mere particular public use and that purpose isresolution, to initiate an expropriation abandoned, there is no “implied contract” thatproceeding [Sps Yusay v. CA, G.R. No. the properties will be used only for the public156684 (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 saidvalue 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 tothe equivalent to be rendered for the property the entity a fee simple which makes the landtaken 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 timeof taking [Sec. 19, LGC]. It is based on the fairmarket value of the property at the time of thetaking of the property.
Page 331 of 412 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWNational 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; oroccur only as a last resort. It must be shown by v. Undertaking of public works andthe 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 bydonation to the Government, joint venture the local chief executive in a written order;agreements, and negotiated purchase) have andbeen exhausted [Sec. 10, R.A. No. 7279]. 4. If for the purpose of athletic, cultural, or civil activities, these must be officiallyIf all the other methods have been exhausted sponsored, recognized, or approved by theand expropriation to continue, the LGU shall local government [Sec. 21, LGC].acquire lands for socialized housing in thefollowing order: A City, Municipality, or Barangay may alsoa. Government lands temporarily close and regulate the use of anyb. Alienable lands of the public domain local street, road, thoroughfare or any otherc. 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 ClosureFurthermore, lands of small-property owners 1. Via ordinance approved by at least 2/3 ofare exempt from expropriation for purposes of all members of the Sanggunian;socialized housing. Page 332 of 412 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAW2. 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 is3. Such ordinance must have provisions for must undergo three not necessary the maintenance of public safety therein; readings and EXC: Unless4. 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)]. members5. 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 developmentPublic Roads are Outside the Commerce plan and publicof Man investment program)A public road may not be the subject of leaseor contract, as public roads are properties for E.g., expropriation, E.g., congratulatorypublic 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 toAs long as a property owner has reasonable power sign an agreementaccess to the general system of streets, he has [Garcia v. COMELEC, G.R. No. 111230no right to compensation for the closure of a (1994)]public street. The Constitution does notundertake to guarantee to a property owner the a. Requisites for valid ordinancepublic maintenance of the most convenient See: Two-Pronged Test under Police Powerroute to his door [Cabrera v. CA, G.R. No.78573 (1991)]. 1. Formal a. Enacted within the corporate powers5. Legislative Power of the local government unit, and b. Passed according to procedureLocal legislative power is the power of LGUs prescribed by lawthrough their local legislative councils to enact, 2. Substantiverepeal, amend, modify ordinances and issue a. It must not contravene theresolutions. 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWshall be consistent with general law [Batangas Internal Rules of ProcedureCATV v. CA, G.R. No. 138810 (2004)]. On the first regular session following the election of its members and within 90 daysThe power to enact ordinances carries with it thereafter, the Sanggunian shall adopt orthe 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 otherby: business may be transacted on the first regular1. 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 the4. Sangguniang Barangay for the barangay election of its officers [Sec. 48, LGC] 2. Creation of Standing Committees 3. Order and calendar of business for eachPresiding 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 forThe presiding officer shall vote only to break a any crime involving moral turpitude shall betie [Sec. 49(a), LGC]. automatically expelled from the Sanggunian; andIn the event of the inability of the regular 7. Such other rules as the Sanggunian mayPresiding officer to preside at a Sanggunian adopt [Sec. 50, LGC]session, the members present and constitutinga quorum shall elect from among themselves atemporary presiding officer. He shall certify Quorum The presence of a quorum is required towithin ten (10) days from the passage ofordinances enacted and resolutions adopted transact official business. A majority of allby the Sanggunian in the session over which members of the Sanggunian who have been elected and qualified shall constitute a quorumhe temporarily presided [Sec. 49(b), LGC]. [Sec. 53, LGC].Non-membership of Acting Governor: AVice Governor who is concurrently an Acting The presence of the presiding officer isGovernor is actually a quasi-Governor. He is considered in determining the presence of a quorum since a presiding officer is considereddeemed a nonmember of the Sanggunian forthe time being and so cannot preside over its a “member” of the sanggunian [La Carlota Citysessions. The procedure for the election of a v. Rojo, G.R. No. 181367 (2012)].temporary presiding officer in case of inabilityof the regular presiding officer shall apply in Quorum shall be based on the total number ofsuch case [Gamboa v. Aguirre, G.R. No. members elected and qualified. The filing of a leave of absence does not affect a member's134213 (1999)]. election to, and qualification as member of, a Page 334 of 412 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWlocal legislative body [Zamora v. Caballero, No two sessions, regular or special, may beG.R. No. 147767 (2004)]. held in a single day.
General Rule: A majority of the members General Rule: All sessions shall be open to thepresent, there being a quorum is required for public.the valid enactment of an ordinance orresolution [Art. 107(g), LGC IRR]. Exception: Closed-door session is ordered by majority of the members present, there being aException: When otherwise provided by the quorum, in the public interest or for reasons ofLGC: 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 otherwiseWhen there is no quorum concurred in by 2/3 vote of those present, thereThe presiding officer may declare a recess until being a quorum.such time as a quorum is constituted or amajority of the members present may also No Subpoena and Contempt Powersadjourn from day to day and may compel the Local legislative bodies do not have the powerattendance of any member absent without to subpoena witnesses and the power tojustifiable cause by designating a member of punish nonmembers for contempt in thethe Sanggunian to arrest the absent member exercise of their legislative powers. They mayand present him at the session. only invite resource persons who are willing to supply information which may be relevant toThe member designated shall be assisted by a the proposed ordinance [Negros Oriental IImember or members of the police force in the Electric Cooperative, Inc. v. Sangguniangterritorial jurisdiction of the LGU concerned. Panlungsod of Dumaguete, G.R. No. L-72492 (1987)]If there is still no quorum, no business shall betransacted. The presiding officer, upon proper 2. Approval and Veto of Ordinancesmotion duly approved by the members present,shall then declare the session adjourned for Approvallack of quorum [Sec. 53, LGC]. The local chief executive shall affix his signature on each and every page of the1. Sangguniang Sessions ordinance [Sec. 54(a), LGC].
Regular Sessions The signature of the local chief executive in theDuring the first session following the election, approval of an ordinance or resolution is not athe Sanggunian shall, by resolution, fix the day, mere ministerial act, as it requires the exercisetime, 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWGrounds for Disapproval Publication EffectivityUnder 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 afterPeriods (1) In a bulletin posting, unlessThe ordinance is returned with objections to the board at the otherwise stated inSanggunian within 15 days in the case of entrance of the the ordinanceSangguniang Panlalawigan, or within 10 days provincial capitol orin the case of Sangguniang city, municipal, orPanlungsod/Bayan; otherwise, the ordinance barangay hall, as theshall be deemed approved [Sec. 54, LGC]. case may be; and (2) In at least 2 otherOverride conspicuous placesThe veto may be overridden by theSanggunian 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 afterItem Veto posting, main posting, unlessThe local chief executive, except the Punong features of the otherwise stated inBarangay, shall have the power to veto any ordinance shall be the ordinanceparticular 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 circulationIn case of an item veto, the veto shall not affectthe items not objected to. If the veto is not All Ordinances with Penal Sanctionsoverridden, the items in the appropriations [Secs. 511 & 59(c), LGC]ordinance of the previous year correspondingto 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 takeNote: There is no veto for barangays. The veto or city, municipal or effect on the daypower cannot be exercised by the Punong barangay hall for a following itsBarangay since he is a member of the minimum period of 3 publication, or at theSangguniang Barangay. The Punong consecutive weeks; end of the period ofBarangay signs the ordinances enacted by the posting, whicheverSangguniang Barangay upon their approval (2) Gist of such occurs later[Sec. 54(c), LGC]. penal ordinance shall be published in3. Publication and Effectivity of a newspaper ofOrdinances general circulation within the provinceThe 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
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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 city4. Review of Ordinances & Resolutions Sanggunian and municipal(approving local development plans and public concerned ordinancesinvestment 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWplan or public investment program, after the Effectivity 15 days after Certificationdisapproval thereof, shall be sufficient ground by the COMELEC that thefor the suspension or dismissal of the official or proposition is approved byemployee concerned [Sec. 58, LGC]. a majority of the votes cast [Sec. 123, LGC]5. Review of Tax Ordinances by theSecretary of Justice [Sec. 187, LGC] Limitations 1. Local initiative shall not on Power of be exercised more thanWithin 30 days from the effectivity of tax Initiative once a year.ordinances or revenue measures, questions on 2. Initiative shall extendtheir constitutionality or legality may be raised only to subjects or matterson appeal to the Secretary of Justice. which are within the legal powers of the sangguniansThe SOJ shall render a decision within 60 days to enact.from receipt of appeal. 3. If at any time before the initiative is held, theThe appeal shall not have the effect of Sanggunian adopts in totosuspending the effectivity of the ordinance and the proposition presentedthe accrual of the tax, fee or charge. and the local chief executive approves theWithin 30 days from receipt of the SOJ’s same, the initiative shall bedecision or the lapse of the 60-day period cancelled. However, thosewithout the SOJ taking action, the aggrieved against such action may, ifparty may file action with a competent court. they so desire, apply for initiative in the mannerSec. 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 dismissedb. Local Initiative and Referendum an initiative petition, which proposed the creation of aLocal Initiative separate local legislativeInitiative has been described as an instrument body, for being ultra viresof 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 orreferendum) is considered as an exercise of upon ordinance approvedoriginal legislative power, as opposed to that of Sanggunians through the system ofderivative 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAW
(18) months [Sec. 125, Initiative Referendum LGC]. and against COMELEC, the wishes of G.R. No.Local Referendum their elected 125416Legal process whereby the registered voters of representa- (1996)].the local government unit may approve, tivesamend, or reject any ordinance enacted by theSanggunian. It shall be held under the direction Effect in The process Voters willof COMELEC within 60 days in case of Process and the simply writeprovinces and cities, 45 days in case of voting in an either "Yes"municipalities and 30 days in case of initiative are of "No" in thebarangays [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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWof a representative of the proponent and a content, where the proposals or parts thereofrepresentative of the local legislative body are patently and clearly outside the “capacity ofconcerned 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 beenOtherwise, the COMELEC shall set a date for approved by a majority of the votes cast in theapproval of the proposition within 60 days from initiative election called for the purpose. Inthe date of certification in case of provinces and other words, the courts can review the termscities, 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 notInitiative 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 lawnot limit the application of local initiatives to and established facts to determine their liabilityordinances, 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 undoubtedlyincludes resolutions. This interpretation is Consent to be sued only means that the Statesupported 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 initiativeon amendments to the Constitution The legal officer shall represent the LGU asUnder Sec. 2 of R.A. 6735, the people are not counsel in civil and special proceedings [Secaccorded the power to directly propose, enact, 481(3)(i), LGC].approve or reject, in whole or in part, theConstitution through the system of initiative. b. To Acquire and Sell PropertyThey can only do so with respect to nationaland 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 capacityc. Power of COMELEC to review the • The property is public and Congresssubstance of the initiative provisions has absolute control over itThe COMELEC in the exercise of its quasi- 2. In its private or proprietary capacityjudicial and administrative powers, may • It is patrimonial and Congress has noadjudicate and pass upon such proposals absolute control.insofar as their form and language areconcerned, and it may be added, even as to Page 340 of 412 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWThe municipality cannot be deprived of it under Sec. 22(c) of the LGC. After all, anwithout due process and payment of just appropriation is an authorization made bycompensation [Province of Zamboanga del ordinance, directing the payment of goods andNorte 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 Authorizationenough that the property be held and devotedfor governmental purposes like local i. When requiredadministration, public education and public When the appropriation ordinance describeshealth [Province of Zamboanga del Norte v. the projects in generic terms there is anCity of Zamboanga, G.R. No. L-24440 (1968)]. obvious need for a covering contract for every specific project that in turn requires approval byProperty held in trust by the LGU for the the Sanggunian.National GovernmentRegardless of the source or classification of Specific Sanggunian approval may also beland in the possession of a municipality, required for the purchase of goods andexcepting those acquired with its own funds in services which are neither specified in theits private or corporate capacity, such property appropriation ordinance nor encompassedis held in trust for the State for the benefit of its within the regular personal services andinhabitants, whether it be for governmental or maintenance operating expenses [Quisumbingproprietary purposes. It holds such lands v. Garcia, G.R. No. 175527 (2008)].subject to the paramount power of thelegislature to dispose of the same, for after all ii. When not requiredit owes its creation to it as an agent for the No further authorization is required if theperformance 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 executivec. 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 isThe authorization need not be in the form only by virtue of the valid delegation fromof an ordinance Congress [Mosqueda v. Pilipino BananaA 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 mustbe made pursuant to a law or ordinance [Land Types of Ultra Vires Acts [Land Bank of theBank 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 toAppropriation ordinance as prior Sense) Ratification/Validatiauthorization on (SecondaryWhere the local government unit operates Sense)under an annual as opposed to a re-enactedbudget, it should be acknowledged that the Act is utterly beyond Act is attended onlyappropriation passed by the Sanggunian may the jurisdiction of a by an irregularity butvalidly serve as the authorization required Page 341 of 412 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAW ● 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 municipalcontracts● 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 likeNote: The Dacanay case was decided before manner when it acts through a special agent; but notthe enactment of the LGC. If the LGC would be when the damage has been caused by the official toapplied, 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 xxxbe 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWLiability under Art. 2189 based on control Political/ Corporate/or supervision Government ProprietaryFor liability to arise under Art. 2189 of the Civil al Acts ActsCode, 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 beAlthough the drainage hole which caused the applicable after the enactment of the LGCaccident was located on a national road, the 1991. Under Sec. 24 of the LGC 1991, there isCity was still liable because their City Engineer a general withdrawal of exemption.exercises control and supervision over saidnational 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAW5. Personal Liability of the Public 2 or more Same SangguniangOfficial municipalitie province Panlalawigan sThe public official is personally liable for Municipalitie Different Jointlydamages: s or provinces referred to1. 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 concerned2. For his refusal or neglect, without justifiable cause, to perform his official duty [Art. 27, Component N/A Jointly Civil Code]. city or referred to3. 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 2Liability of public officials for ultra vires or moreacts: While a municipality cannot be bound by highlya contract which is void for being ultra vires, urbanized“case law states that the officers who citiesauthorized the same can be held personallyaccountable for acts claimed to have been Note: The power of provincial boards to settleperformed in connection with official duties boundary disputes is limited to implementingwhere they have acted ultra vires” [See Land the law creating a municipality. Thus, provincialBank v. Cacayuran, G.R. No. 191667 (2013)]. boards do not have the authority to approve agreements which in effect amend theC. 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 TrialBoundary disputes between and among localgovernment units shall, as much as possible, a. Trial by Sanggunianbe settled amicably [Sec. 118, LGC]. In the event the Sanggunian fails to effect an amicable settlement within 60 days fromThere 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 thatclaimed by two or more LGUs [Sec. 15, LGC effect; andIRR]. 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAW3. Appeal D. Vacancies and SuccessionAppeal 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; orshall be maintained and continued for all g. Is otherwise permanently incapacitatedpurposes [Art. 18, LGC IRR]. from discharging the functions of his office [Sec. 44(2), LGC]The conduct of a plebiscite on the creation of abarangay should be suspended or cancelled in a. Permanent Vacancy in the Localview of a pending boundary dispute between Chief Executive [Sec. 44, LGC]two local governments involving an areacovered by the proposed barangay. A requisitefor the creation of a barangay is for its territorial Vacant Positions Successorsjurisdiction to be properly identified by metesand bounds or by more or less permanent Governor Vice governornatural boundaries. Precisely becauseterritorial jurisdiction is an issue raised in the Mayor Vice mayorpending boundary dispute, until and unless Vice governor or vice Highest-rankingsuch issue is resolved with finality, to define the mayor Sanggunian memberterritorial jurisdiction of the proposed barangaywould only be an exercise in futility [City of Governor and vice Mayor; SecondPasig v. COMELEC, G.R. No. 125646 (1999)]. governor OR Mayor highest ranking and vice mayor Sanggunian memberEvidence Given More Weight to become ViceIt is undisputed that the Land Management governor/ Vice mayorBureau is the principal government agency Subsequenttasked with the survey of lands, and thus, more vacancies filledweight should be given to the documents according to theirrelating 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-rankingassessor, it is the former’s certification as to the Sanggunianglocation of properties in dispute that is Barangay Membercontrolling, absent any finding of abuse ofdiscretion. The duty of provincial and municipalassessors is primarily the assessment of taxes Ranking in the Sanggunianand not the survey of lands [Barangay Determined on the basis of the proportion ofSangalang v. Barangay Maguihan, G.R. No, votes obtained by each winning candidate to159792 (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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWb. 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 ofPanlalawigan Executive Secretary Certification of the the Sangguniang political party of the Panlalawigan member who causedSangguniang the vacancy issued by Recommendation ofPanlungsod (of highly the highest official of the Sangguniangurbanized and the political party Panlungsodindependent Rationale: To maintaincomponent cities) party representation as willed by the people in the election [Navarro v. CA, G.R. No. 141307 (2001)]
Sangguniang Governor Nomination and Recommendation ofPanlungsod (of Certification of the Sangguniangcomponent cities) political party of the Panglungsod member who causedSangguniang Bayan the vacancy issued by Recommendation of the highest official of Sangguniang Bayan the political party
Sangguniang City Sangguniang N/A Recommendation ofBarangay 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWAppointment without nomination and Barangay officials City or municipalcertification mayorSuch is null and void ab initio and is a groundfor administrative action against theresponsible official [Sec. 45(b), LGC]. Exceptions Resignation is deemed accepted when:Power of appointment a. Not acted upon: The resignation shallThe appointing authority is not bound to be deemed accepted if not acted uponappoint anyone recommended to him by the by the authority concerned within 15Sanggunian concerned. working days from the receipt thereof [Sec. 82, LGC].On the other hand, neither is the appointing b. Irrevocable resignations byauthority vested with so large a discretion that sanggunian members: Deemedhe can disregard the recommendation of the accepted upon presentation before ansanggunian concerned. Since the open session of the sanggunianrecommendation takes the place of nomination concerned and duly entered in itsby political party, the recommendation must records [Sec. 82, LGC].likewise be considered a condition sine quanon for the validity of the appointment [Fariñas When law is silent as to who approvesv. Barba, supra]. resignation Under established jurisprudence, resignations,Term of office of the appointee in the absence of statutory provisions as toThe appointee under Sec. 45 serves the whom they should be submitted, should beunexpired term of the vacant office [Sec. 44(d), tendered to the appointing person or bodyLGC]. [Sangguniang Bayan of San Andres v. CA, G.R. No. 118883 (1998)].Vacancy in the barangay or youthrepresentation in the Sanggunian: The Resignation not allowed in recallvacancy is automatically filled by the official The elective local official sought to be recallednext 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 relinquishmentGeneral Rule: Deemed effective only upon of an office by the holder, with the intention ofacceptance 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 easem*nt or an members concerned office
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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 his2. Temporary Vacancy territorial jurisdiction for a period not exceeding 3 consecutive days, he may designate inSuccession In Temporary Vacancies writing the officer-in-charge.Temporary vacancy occurs when the localchief executive is temporarily incapacitated to Termination of Temporary Incapacityperform his duties for physical or legal reasons Temporary incapacity is terminated uponsuch as, but not limited to: submission by the local chief executive to thea. Leave of absence; Sanggunian of a written declaration that he hasb. Traveling abroad; or reported back to officec. 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAW
Sanggunian The Punong from completion [Sec. 71, Barangay Members Barangay LGC]
Effects Automatically considered asIf the application for LOA is not acted upon on official candidate and is entitled to bewithin 5 working days after receipt, the sought to voted upon [Sec. 71, LGC] Notapplication is deemed approved [Sec. 47(b), be allowed to resign while recallLGC]. 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAW 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. 140560c. 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 Barangayd. 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 yearse. 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 electionsf. 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 allowedLimitations to serve the remaining portion of the term for1. 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 Act2. 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 ofThe phrase “regular local election” refers to an Sec. 14 of R.A. No. 9006.election where the office held by the localelective official sought to be recalled will be Note: Sec. 14 of R.A. No. 9006 expresslycontested and be filled by the electorate [Paras repealed Sec. 67 of B.P. Blg. 881 or thev. 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 whichto the election itself by means of which voters he is holding in a permanent capacity, exceptdecide whether they should retain their local for President and Vice-President, shall beofficial or elect his replacement. Hence, recall Page 350 of 412 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWconsidered ipso facto resigned from his office Prevailing doctrines on issues affectingupon 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. 9006did not repeal Sec. 66 of the Omnibus Election a. Assumption of Office by Operation ofCode, which imposes a limitation to appointive Law:officials and considers them ipso facto When a permanent vacancy occurs in anresigned from office upon filing of their elective position pursuant to the rules ofcertificate of candidacy. succession under the LGC:
The classification justifying Sec. 14 of R.A. No. For the office assumed: The successor’s9006, i.e., elected officials vis-à-vis appointive service for the unexpired portion of the term ofofficials, is anchored upon material and the replaced official is not treated as one fullsignificant distinctions (e.g. elective officials term and is not counted in the application ofoccupy their office by virtue of the mandate of any term limit [Borja v. COMELEC, supra].the electorate, appointive officials areprohibited from engaging in partisan political For the office held before succession: Theactivity except to vote) [Fariñas v. Executive successor’s assumption by operation of law toSecretary, G.R. No. 147387 (2003)]. the higher office (e.g. vice-mayor) is considered an involuntary severance or2. Limitation of Consecutive interruption of the office he previously heldTerms (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 officeThe term limit for elective officials must betaken to refer to the right to be elected as well b. Recall Electionsas the right to serve in the same elective An elective official, who has served for threeposition. Consequently, it is not enough that an consecutive terms and who did not seek theindividual has served three consecutive terms elective position for what could be his fourthin an elective local office, he must also have term, but later won in a recall election, had anbeen 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 endapply [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. Conversionoffice [or the right to hold on to an office]” or “at The abolition of an elective local office due toleast 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 thedisqualification d. Preventive Suspension1. Elected for three consecutive times for the Preventive suspension is not a term- same position; and interrupting event as the elective officer’s2. 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAWe. Losing in an Election ProtestWhen a candidate is proclaimed a winner foran elective office and assumes office, his termis interrupted when he loses in an electionprotest and is ousted from office, thusdisenabling him from serving what wouldotherwise be the unexpired portion of his termof 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 electionprotest and said decision becomes final aftersaid official had served the full term for saidoffice, then his loss in the election contest doesnot constitute an interruption since hemanaged to serve the term from start to finish.His full service should be counted in theapplication 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 ElectionProtestThe period during which the winner of anelection protest is unable to assume office as itwas occupied by his opponent is considered tobe an involuntary interruption in the service ofhis term and therefore bars the application ofthe three-term limit rule [Abundo, Sr. v.COMELEC, supra].
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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 theTaxation restraint of trade; 3. The collection of local taxes, fees, charges1. 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 ofLGUs have the power to create their own taxation.sources of revenues and to levy taxes, fees,and charges which shall accrue exclusively fortheir use and disposition and which shall be B. Common Limitations on theretained by them [Sec. 18, LGC]. Taxing Power of the LGUThe grant of taxing powers to LGUs under the Generally, LGUs cannot impose taxes that areConstitution and the LGC does not affect the already imposed by the National Governmentpower of Congress to grant exemptions to such as:certain persons, pursuant to a declared 1. Income tax, except when levied on banksnational 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 mortismust be resolved in favor of municipal causa, except as otherwise providedcorporations [PLDT v. City of Davao, G.R. No. herein;143867 (2001)]. 4. Customs duties, registration fees of vessel and wharfa*ge on wharves, tonnage dues,2. Fundamental Principles on and all other kinds of customs fees, charges and dues except wharfa*ge onTaxation 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 otherThe power to impose a tax, fee, or charge or to impositions upon goods carried into or outgenerate revenue under this Code shall be of, or passing through, the territorialexercised by the sanggunian of the local jurisdictions of local government units ingovernment unit concerned through an the guise of charges for wharfa*ge, tolls forappropriate ordinance. bridges or otherwise, or other taxes, fees, or charges in any form whatsoever uponFundamental 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 marginal2. 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAW (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 be12. 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 and13. 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 the14. 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 such15. 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 uponPersons Exempted from LGU’s taxing the appeal, the aggrieved party may file appropriatepower. 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 orAn 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 withinstrumentality and not being a GOCC, is public policy; and
Page 354 of 412 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAW6. 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 effectiveNote: 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 beproceeding [Rural Bank of Makati v. transmitted to the higher level sanggunianMunicipality 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 andD. Procedure for Approval and 111, LGC IRR]. 8. Within 10 days after the approval of theEffectivity of Tax Ordinances ordinance, certified true copies of all tax ordinances or revenue measures shall beProcedure for Approval of Tax Ordinances published in full for 3 consecutive days in a1. 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 Exemption2. 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 upon3. 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 UP Law Bar Operations Commission 2022 LOCAL GOVERNMENTS POLITICAL LAW 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; and5. Machinery and equipment used for pollution control and environmental protection [Sec. 234, LGC].
The exemption from real property taxes givento cooperatives applies regardless of whetheror not the land owned is leased. Thisexemption benefits the cooperative's lessee aswell. The characterization of machinery as realproperty is governed by the Local GovernmentCode and not the Civil Code [ProvincialAssessor of Agusan Del Sur v. Filipinas PalmOil Plantation, Inc., G.R. No. 183416 (2016)].
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I. CONCEPTS ● Obligations relating to self-determination [see also East Timor Case, ICJ (1995); Palestinian Wall Advisory Opinion, ICJPublic International Law is a body of (2004)];principles, norms and processes which ● Obligations relating to the environment ofregulate the relations of States and other common spaces [Resolution oninternational persons and governs their Obligations erga omnes in Internationalconduct 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 OmnesObligations Erga Omnes are “obligations of a Erga Omnes Jus CogensState towards the international community as awhole,” which are the “concern of all States” As a Pertains to Pertains toand 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 aErga Omnes literally means “flowing to all.” rules and norm acts thatExamples 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW
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 theSources 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
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II. RELATIONSHIP International Domestic Law LawBETWEEN INTERNATIONALAND PHILIPPINE Settlement By means of By means of of Disputes State-to- localDOMESTIC LAW State administrativ transactions e andA. 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 responsibilitScope 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 circ*mstance 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 mereHow 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 ViewRelations Regulates Regulates International law and municipal law areRegulated 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 intoSources 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWIf there is conflict between the two, Special case for the presence of certaininternational 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 Agreementlaw as separate and independent of each between the Republic of the Philippines andother. Neither international law nor municipal the United States of America concerninglaw 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 themust be transformed or incorporated into Philippines except under a treaty dulymunicipal law. concurred in by the Senate and, when the Congress so requires, ratified by a majority ofb. How International Law Becomes part the votes cast by the people in a nationalof Philippine Law referendum held for that purpose, and recognized as a treaty by the other contracting1. 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 that2. 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)].
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III. SOURCES OF 3. The Relation Between theOBLIGATIONS IN Primary Sources and theINTERNATIONAL 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 LawShorthand Terms for sources of There is no established hierarchy between theinternational 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 LawA. Types of Sources of a. Definition of TreatyInternational Law It is an international agreement concluded between States in written form and governed by international law, whether embodied in a1. 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. Requisites2. 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW2. 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 TreatiesThe 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 to2. Consent-based exclude or to modify the legal effect of certain provisions of the treaty in their application toTreaty obligation is based on consent. No state that State [Art. 2(d), VCLT].may be bound by a treaty obligation unless ithas so consented [Art. 34, VCLT]. General Principles on Reservations 1. Generally, reservations are allowed whenHow manifested: Signature, exchange of the State is signing, ratifying, accepting,instruments constituting a treaty, ratification, approving or acceding to a treaty, unlessacceptance, 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 allowedgoverning giving consent by exchange of by the treaty; orinstruments, signature, or ratification]. c. The reservation is incompatible with the object and purpose of the treaty3. Pacta Sunt Servanda [Art. 19, VCLT].
Every treaty in force is binding upon the parties 2. A reservation expressly authorized by ato it and must be performed by them in good treaty does not require any subsequentfaith [Art. 26, VCLT]. acceptance by the other contracting States • Exception: When the treaty providesNote: This is considered as CIL and it applies otherwiseto all obligations contained in a treaty. 3. When do reservations require the consent4. 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 aGeneral Rule: A treaty does not create either treaty that the application of the treatyobligations or rights for a third State without its in its entirety between all the parties isconsent [Art. 34, VCLT]. an essential condition of the consent of each one to be bound by the treatyExceptions: i. Then a reservation requiresa. 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 internationalb. 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 provides5. Treaties are Non-Retroactive otherwise
General Rule: A treaty does not bind a party in 4. Acceptance of a reservationrelation to any act or fact which took place or • Acceptance by another contractingany situation which ceased to exist before the State of a reservation constitutes the Page 363 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW 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 Circ*mstances [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 Juris7. 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 ofe. 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW8. Practice of international organs b. A treaty provision constitutes evidence of custom; orOpinio Juris c. A treaty provision crystallizes into aThis refers to the belief on the part of states that customary norm.a particular practice is required by law, and notbecause 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 areContinental Shelf Cases (ICJ, 1969)]. not dissolved by their fulfillment [North Sea Continental Shelf Cases, ICJ (1969)].Binding Effect of CILGeneral Rule: Customary International Law is The customary norm retains a separate identitybinding on all states. even if its content is identical with that of a treaty norm. Thus, a State that cannot holdExceptions: another State responsible for a breach of aPersistent Objector - When a State has treaty obligation can still hold the erring statecontinuously objected to a new customary responsible for the breach of the identicalnorm at the time when it is yet in the process of customary norm [Nicaragua Case, ICJ (1986)].formation, by such persistent objection, thenorm will not be applicable as against that Philippine PracticeState [Magallona and Asylum Case, ICJ The Supreme Court has identified the following(1950)]. customary norms: a. Rules and principles of land warfare and ofSubsequent Objector - The method of humanitarian law under the Haguestraight lines, established in the Norwegian Convention and the Geneva Conventionsystem (argued by UK to be contrary to [Kuroda v. Jalandoni, G.R. No. L-2662international but which Norway persistently (1949)];objected to); that even before the dispute b. Pacta sunt servanda [La Chemise Lacostearose, this method had been consolidated by a v. Fernandez, G.R. No. L-63796-97constant and sufficiently long practice, in the (1984)];face of which the attitude of governments bears c. Human rights as defined under thewitness to the fact that they did not consider it Universal Declaration of Human Rightsto be contrary to international law [Fisheries [Reyes v. Bagatsing, G.R. No. L-65366Case (ICJ, 1951)] (1983)]; d. The principle of restrictive sovereignNote: 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 toRegional / Bilateral Custom - The ICJ has protect the premises of the diplomaticrecognized 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 ownover Indian Territory Case (ICJ, 1960). country [Marcos v. Manglapus, G.R. No. 88211 (1989)];Duality of Norms g. The principle that “a foreign army allowedIt is possible for a norm of international law to to march through friendly country or to beexist both as a customary norm and a stationed in it, by permission of itsconventional norm (e.g. prohibition against the government or sovereign, is exempt fromuse of force). Such norms are said to be of dual criminal jurisdiction of the place” [Raquizacharacter. v. Bradford, G.R. No. L-44 (1945)]; h. The principle that judicial acts, not of aNorms of dual character come into being when: political complexion of a de factoa. 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW 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 circ*mstances 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 arej. 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 law3. General Principles of Law pursuant to Article 59 of the ICJ Statute.(GPL) ICJ decisions have no binding force except asDefinition between the parties and in respect of thatThese 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 Publicistsrelations of states [Oppenheim]. No clear definition of what is a highly qualified publicist.Function of GPLTo avoid a non liquet, i.e. when a court does The phrase ‘most highly qualified’ is not givennot 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 toExamples of General Principles of Law legal scholars or "academic writers” [Bayan1. Estoppel [Temple of Preah Vihear Case, Muna v. Romulo, G.R. No. 159618 (2011)]. (1962)]2. Res Judicata3. Res Inter Alios Acta The Difference between Judicial4. Prescription Decisions and Writings of Highly5. Duty to Make Reparations [Chorzow Qualified Publicists Factory Case, PCIJ (1927)] It is not so much that judicial decisions6. Abuse of Rights necessarily possess a higher intrinsic value7. Good Faith than the teachings of publicists, but that they8. Principle of Reciprocity have ‘a more direct and immediate impact on9. Circ*mstantial Evidence the realities of international life [Borda].
Circ*mstantial evidence is admitted as indirect 2. United Nations Declarationevidence in all systems of law and its use is General Rule: General Assembly resolutionsrecognized by international decisions. Such are not binding on member States.circ*mstantial evidence, however, must consistof a series of facts or events that lead to a But when they are concerned with generalsingle 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWconcerning the existence of principles and 4. Actions of Organs ofrules of international law [Harris]. International OrganizationsGeneral Assembly resolutions may contribute Created by Treatyto the formation of custom as a kind of The treaty constituting an internationalcollective state practice. These resolutions can organization may entrust a body of thebe considered the collective equivalent of organization to adopt binding legal standardsunilateral general statements. The rules enacted shall be binding only to the member states of the organization. It cannotState practice may also be evidenced either in bind third states [Cassesse].declarations of general principle or inresolutions dealing with particular cases. D. Other SourcesIn some cases, a resolution may have theeffect of an authoritative interpretation and 1. Unilateral Declarationsapplication 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 legalThe General Assembly may recommend obligations [GP 1, Guiding Principlesmeasures for the peaceful adjustment of any Applicable to Unilateral Declarations of Statessituation, regardless of origin, which it deems Capable of Creating Legal Obligationslikely to impair the general welfare or friendly (GPUDS)].relations among nations, including situationsresulting from a violation of the provisions of Good faiththe present Charter setting forth the Purposes When the conditions for this are met, theand Principles of the United Nations [Art. 14, binding character of such declarations is basedUN Charter]. on good faith. States concerned may then take them into consideration and rely on them. SuchException: Certain UN organizational matters States are entitled to require that such obligations be respected.3. Security Council ResolutionsThe Security Council is empowered to issue Authoritybinding legal standards when acting under Unilateral declarations bind the StateChapter VII of the UN Charter concerning internationally only if it is made by an authorityaction 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 forThe Security Council may decide what Foreign Affairs are competent to formulatemeasures involving the use of armed force are declarations. Other persons representing theto be employed to give effect to its decisions. State in specified areas may be authorized to bind it.When the Security Council decides not toresort to recommendations but to issue Binding effectdecisions, these are binding on the strength of Even without any explicit acceptance, theArticle 25 of the UN Charter. moment when one of the addressees of the unilateral declaration seeks to rely on the legalThe Members of the United Nations agree to obligation indicated in it, this will constitute theaccept and carry out the decisions of the acceptance needed to convert it into a bilateralSecurity 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWLegal 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 beCan the unilateral declarations of one modified only by a subsequent norm ofState bind other States? general international law of the sameGeneral Rule: No obligation may result for character.other States from the unilateral declarations ofa State [GP 9, GPUDS]. Acceptance and Recognition [Draft Conclusion 6, DCJC]Exception: The other State/s concerned may “Acceptance and recognition” as a criterion forincur obligations in relation to such a unilateral identifying a peremptory norm of generaldeclaration to the extent that they clearly international law (jus cogens) is distinct fromaccepted 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 such2. Obligations Erga Omnes a norm is accepted and recognized as one fromErga omnes obligations refer to the obligations which no derogation is permitted, and whichof a State towards the international community can only be modified by a subsequent norm ofas a whole, which, by their very nature, are the general international law having the sameconcern of all States [Barcelona Traction character.(Belgium v. Sain), ICJ Report (1970)]. Evidence of acceptance and recognition3. 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 arecognized by the international community of peremptory norm (jus cogens) may take a wideStates as a whole as a norm from which no range of forms. These include, but are notderogation is permitted and which can be limited to:modified only by a subsequent norm of general ● Public statements made on behalf ofinternational law having the same character States[Draft Conclusion 1, Peremptory Norms of ● Official publicationsGeneral International Law (DCJC)]. ● Government legal opinions ● Diplomatic correspondenceGeneral Nature of jus cogens [Draft ● Legislative and administrative actsConclusion 3, DCJC] ● Decisions of national courtsPeremptory norms of general international law ● Treaty provisions(jus cogens) reflect and protect fundamental ● Resolutions adopted by an internationalvalues of the international community. These organization or at an intergovernmentalare hierarchically superior to other rules of conferenceinternational law and are universallyapplicable. Subsidiary means for the determination of peremptory character of norms of generalBases for jus cogens [Draft Conclusion 5, international law (jus cogens) [DraftDCJC] 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 the2. Treaty provisions and general principles of peremptory character of norms of general law international law (jus cogens).
Page 368 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWb. 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 ac. 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 HumanEffects 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 authoritative2. 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 seriousbreaches of peremptory norms of general Can treaty provisions be soft law?international law (jus cogens) [Draft Yes. Another perspective on soft law is that itConclusion 19, DCJC] involves “norms and principles” which areA breach of an obligation arising under a usually considered general in their content andperemptory 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWreal obligations on its parties because it subject. They are not directly governed by thearticulates ‘principles’ rather than ‘rules’ or rules of international law. Their rights (e.g.‘obligations’ but is nevertheless potentially human rights of individuals) may be assertednormative. and their responsibilities imposed indirectly, through the instrumentality of an intermediateConnection between soft law and custom agency (e.g. State).a. Soft law facilitates progressive evolution of customary law. This distinction between objects and subjectsb. 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. StatesINTERNATIONAL 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 theSubjects are entities which are: requisites of statehood.1. Capable of possessing international rights and duties; and2. 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; and1. States; (d) Capacity to enter into relations with the other2. International organizations; and States3. Natural or Juridical Persons 1. Permanent PopulationNote: States are generally considered as the It refers to a permanent population andprimary 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 thebasis of the co-existence of States, and that 2. Defined Territoryfundamental changes will take place only State territory is that defined portion of thethrough State action, whether affirmative or surface of the globe, which is subjected to thenegative’. The States are the repositories of sovereignty of the State [Oppenheim].legitimated authority over peoples andterritories. It is only in terms of State powers, A State must exercise control over a certainprerogatives, jurisdictional limits and law- area. It need not be exactly defined by metesmaking capabilities that territorial limits and and bounds, so long as there exists ajurisdiction, responsibility for official actions, reasonable certainty of identifying it. Noand a host of other questions of co-existence minimum land area is required.between nations can be determined[Friedmann].
Objects of international lawPersons or things in respect of which rights areheld and obligations are assumed by the Page 370 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWModes of Acquiring Territory Conquest ○ Act of defeating an opponent andOccupation 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 ofPrescription 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 aAccession 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 occupiedCession 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW 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, orA 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 issovereign and independent. blocked from the meaningful exercise of its right to self-determination internally, it isThe State is the sole executive and legislative entitled, as a last resort, to exercise it byauthority. It must be independent of other state secession [In re Secession of Quebeclegal orders, and any interference by such legal (Can., 1998)].orders, or by an international agency, must bebased on a title of international law. The Principle of Continuity and Obligations Contracted by De Facto GovernmentsIndependence is the decisive criterion of The State is bound by engagements enteredstatehood. 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 generallyenter into relations with other States. liable for the acts of the usurper.
Concepts Relating to Statehood: A general government de facto having1. Recognition completely taken the place of the regularlyRecognition is an act by which a state constituted authorities in the state binds theacknowledges the existence of another state, nation. So far as its international obligationsgovernment or belligerent community and are concerned, it represents the state. Itindicates willingness to deal with the entity as succeeds to the debts of the regularsuch under international law. government it has displaced and transmits its own obligations to succeeding titularAs a public act of state, recognition is an governments. Its loans and contracts bind theoptional and political act. There is no legal duty state and the state is responsible for thein 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 legal2. Failed States personality. International organizations mayStates whose government has collapsed include as members, in addition to States,[Shaw]. Though retaining legal capacity, they other entities [Draft Articles on thehave, for all practical purposes, lost the ability Responsibility of International Organizations,to exercise it. Art. 2(a)].
Page 372 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWGeneral Rule: International organizationshave special personalities. The status andpowers of an international organization isdetermined by agreement and not by generalor customary international law. They areconsidered subjects of international law “if theirlegal personality is established by theirconstituent instrument.” Thus, legal personalityin this context is a relative concept [Magallona].
Exception: United Nations which has anobjective international personality. The UN’spersonality is binding on the wholeinternational community, including States whoare not UN members [Reparations for InjuriesAdvisory Opinion, ICJ (1949)].
C. IndividualsGeneral Rule: Individuals, whether natural orjuridical, do not have international legalpersonalities.
Exception: Individuals may assume the statusof subjects of international law only on thebasis of agreement by States and in specificcontexts, not in accordance with general orCIL.
Examples of Instances where naturaljuridical 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].
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V. JURISDICTION OF 4. Universality Principle: A State may exercise jurisdiction over crimes committedSTATES without respect to the nationality of the offender, on the ground that such crimesJurisdiction means the power of a state under are declared as international crimes by theinternational law to govern persons and international community as a whole andproperty by its municipal law. This may be thus are prohibited by international lawcriminal or civil, and may be exclusive or [Magallona].concurrent with other States [Harris]. Example: Jurisdiction is asserted withTypes of Jurisdiction: respect to acts considered committeda. 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 jurisdictionb. 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 morec. 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. NationalityA. Basis of Jurisdiction Definition1. 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. Importance2. 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW2. Acquisition of Nationality 2. An individual who, after renouncing his original nationality in order to be naturalized in another state, is subsequently denaturalizedBirth and is thereafter denied repatriation by hisa. 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 courtsNaturalization c. Elementary educationNaturalization is a process by which a person d. Public relief and assistance and rationingacquires a nationality after birth by any means of products in short supplyprovided by the law [Coquia and Aguling- e. Treatment no less favorable than thatPangalangan]. accorded to aliens f. Right of AssociationTwo types of naturalizationa. 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 changeb. 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 by3. Statelessness his status as a minor, on the part of his family, society, and the State. b. Every child shall be registered immediatelyDefinition after birth and shall have a name.Statelessness is the condition or status of an c. Every child has the right to acquire aindividual who is born without any nationality or nationality [Art. 24].who loses his nationality without retaining oracquiring another [Cruz]. 4. Nationality of Foundlings“Stateless person” means a person who is notconsidered as a national by any State under Definitionthe operation of its law [Art. 1, Convention A deserted or abandoned infant or child whoseRelating 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 unknownExamples: facts of birth and parentage and registered in1. 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 Thewhose state observes only jus soli. Proposed Rule on Adoption (Domestic and Inter-Country)]. Page 375 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWThe common thread of the UDHR, UNCRC authorities of his own state to persuade themand ICCPR is to obligate the Philippines to to champion his claim in diplomacy or beforegrant nationality from birth and ensure that an international tribunal.no child is stateless. This grant of nationalitymust be at the time of birth. These 2. State Immunitycirc*mstances, including the practice of jus General Rule: This refers to a principle bysanguinis countries, show that it is a generally which a State, its agents, and property areaccepted principle of international law to immune from the jurisdiction of another Statepresume foundlings as having been born of [Magallona].nationals of the country in which the foundlingis found [Poe-Llamanzares v. COMELEC, G.R. It is a basic principle of international law thatNo. 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 forum1. Acts of State Doctrine state. This immunity extends to both criminalCourts 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 duedeference to the independence of sovereignty State immunity . . . is a creature of customaryof every sovereign State [PCGG v. international law and derives from the equalitySandiganbayan, G.R. 124772 (2007)]. of sovereign States [Holland v. Lampen-Wolfe, UKHL (2000)].Every sovereign state is bound to respect theindependence of every other state, and the Exception: When a state waives the immunitycourts of one country will not sit in judgment on or consents to being sued.the acts of the government of another, donewithin its territory. Redress of grievances by Seizure of Propertyreason of such acts must be obtained through At least one of the following conditions must bethe means open to be availed of by sovereign satisfied before any measure of constraint maypowers as between themselves [Underhill v. be taken against property belonging to aHernandez, 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, orby which States prevent their national courts b. That the State which owns the property hasfrom deciding disputes which relate to the expressly consented to the taking of a measureinternal affairs of another State, the other two of constraint, orbeing immunity and non-justiciability. It is an c. That the State has allocated the property inavoidance technique that is directly related to a question for the satisfaction of a judicial claimState’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 nationalcourt or to settlement of their disputes without Types of State Immunitytheir consent [PCGG v. Sandiganbayan, 1. Rationae Materiae: Attaches to the officialsupra]. acts of State officials and is determined by reference to the nature of the acts inThe U.S. Supreme Court, in Banco Nacional de question rather than by reference to theCuba 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 twoeven 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 transactionscharacter, in practice the usual method for an of States are subject to foreignindividual to seek relief is to exhaust local jurisdiction.remedies and then repair to the executive Page 376 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW 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 violence2. 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 TehranThe 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 to2. It is a customary norm. prevent any attack on his person, freedom or3. 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 specialmerely from being subjected to an adverse protection for his physical safety and thejudgment but from being subjected to the trial preservation of his honor and reputation.process. It is, therefore, necessarilypreliminary in nature. In addition, there is a The head of State is immune from criminal andsubstantial body of State practice from other civil jurisdiction, except when he himself is thecountries which demonstrates that customary plaintiff, and is not subject to tax or exchangeinternational law does not treat a State’s or currency restrictions. Based on the principleentitlement 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 arethe peremptory nature of the rule which it is inviolate.alleged to have violated.” [JurisdictionalImmunities of the State, Germany v. Italy, ICJ Scope(2012)] 1. The private residence of a diplomatic agent shall enjoy the same inviolability and3. Diplomatic Immunity protection as the premises of the mission. 2. His papers, correspondence and, exceptTheoretical Bases as provided in paragraph 3 of Article 31.Diplomatic immunities and privileges have 3. His property shall likewise enjoybeen 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW 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 toPersons Entitled exercise the waiver rests with the sovereign1. 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 the4. 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 orDuration of Immunities and Privileges commercial activity exercised by theImmunities and privileges begin from the diplomatic agent in the receiving Statemoment 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 hisappointment is notified to the Ministry of No measures of execution may be taken inForeign Affairs. respect of a diplomatic agent except in the cases where he comes under the aboveThey come to an end when he: exceptions and provided that the measures1. Exits the country, or concerned can be taken without infringing the Page 378 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWinviolability of his person or of his residence Consular Immunity[Art. 31, VCDR]. a. Personal InviolabilityExemption from dues and taxes - Personsentitled Rule 1. They are not liable to arrest or detention1. Diplomatic Agent: pending trial, except in case of a graveA diplomatic agent shall be exempt from all crime and pursuant to a decision of adues and taxes, personal or real, national, competent judicial authority; andregional or municipal, except: 2. They shall not be committed to prison nora. 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 ofb. 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 institutedc. Estate, succession or inheritance duties against a consular officer, he must appeard. 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 mannere. 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 circ*mstances 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, Vienna2. Administrative and Technical Staff: Convention on Consular RelationsAdministrative and Technical Staff together (VCCR)].with the members of their families forming partof their respective households if they are not Immunity from Local Jurisdictionnationals or permanent residents in the General Rule: Consular officers andreceiving State. They are exempt from all taxes employees are entitled to immunity from theand dues, personal or real, national, regional or jurisdiction of administrative and judicialmunicipal to the same extent as Diplomatic authorities in the receiving state with respect toAgents but are not exempt from customs acts performed in exercise of consularduties, taxes and related charges except in functions [Art. 43, VCCR].respect to articles imported at the time of firstinstallation [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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW 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 concerned2. 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 andtheir Officers
The rapid growth of international organizationsunder contemporary international law haspaved the way for the development of theconcept of international immunities.
Three propositions underlying the grant ofinternational immunities to internationalorganizations. These principles, contained inthe 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; andc. 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 withthe status, dignity or privileges of individuals,but with the elements of functional Page 380 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW
VI. GENERAL PRINCIPLES 2. It is otherwise established that the negotiating states agreed that ratificationOF TREATY LAW should be required; 3. The representative of the state has signedNote: 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 ProcessA treaty, under international law is: 1. Authorization. Two modes where a1. An international agreement; person is considered as representing their2. Concluded between states; state: (a) with full powers and (b) without3. In written form; full powers4. Governed by international law; a. With full powers: A person is5. Embodied in a single instrument or in two considered as representing a State in or more related instruments; and the treaty-making process if he6. Whatever its particular designation [Art. produces appropriate full powers [Art. 2(1)(a), VCLT]. 7(1)(a-b), VCLT]. b. Without having to produce fullHowever, the definition of a treaty under the powers: In virtue of their functions, theVCLT is without prejudice to the use of those following are considered asterms 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 of2(2), VCLT]. Government and Ministers for Foreign Affairs, for the purpose ofThus, other names of treaties include performing all acts relating to theconventions, covenants, protocols, modus conclusion of a treaty;vivendi, pacts, charters, concordat. ii. Heads of diplomatic missions, for the purpose of adopting the text ofB. Requisites for a Valid Treaty a treaty between the accrediting State and the State to which theyRequisites are accredited; iii. Representatives accredited by1. 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 representatives3. Consent freely given discuss the terms and provisions of the4. Object and Subject Matter treaty.5. Ratification 3. Adoption. When the form and content have been settled by the negotiatingIn addition to the constitutional requirement, states, the treaty is adopted. This is onlyratification is likewise necessary under preparatory to (1) the authentication of theinternational law when: text of the treaty, and (2) the signing1. 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW5. 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 natural6. 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 AssemblyD. Important Concepts in Treaty (Ad Op), ICJ (1950)].law An agreement as to the interpretation of a provision reached after the conclusion of the1. Pacta Sunt Servanda treaty represents an authentic interpretation by the parties. Subsequent practice constitutesEvery treaty in force is binding upon the parties objective evidence of the understanding of theto it and must be performed by them in good parties as to the meaning of the treatiesfaith [Art. 26, VCLT]. [Kasikili/Sedudu Island, ICJ (1999)].
Note: This is considered as CIL and it applies 3. Reservationsto all obligations contained in a treaty, whetheror 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 orA party may not invoke its internal laws to acceding to a treaty, whereby it purports tojustify its failure to perform its obligation in a exclude or to modify the legal effect of certaintreaty. provisions of the treaty in their application to that State [Art. 2(d), VCLT].2. Interpretations Exceptions: A reservation shall not operate toSchools of Interpretation [Art. 31, VCLT] modify or exclude the provisions of a treaty:a. Subjective - intention of the parties a. Where the treaty expressly prohibitsb. Objective - textual reservations in general;c. Teleological - object and purpose b. Where the treaty expressly prohibits that specific reservation being made; orGeneral Rule: A treaty shall be interpreted in c. Where the reservation is incompatible withgood 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 Genocidein their context and in the light of its object and Conventions Advisory Opinion, ICJpurpose [Art. 31(1), VCLT]. (1951)].
Exceptions: The context for the purpose of the To be considered binding on the otherinterpretation of a treaty shall comprise, in contracting State to the treaty, that State mustaddition to the text, including its preamble and accept the reservation. A reservation isannexes: [Art. 31(2), VCLT] presumed to be accepted. A reservation isa. 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW 1. If consent was given in violation ofInterpretative Declaration - only specifies and provisions of internal law regardingclarifies the meaning or scope of a treaty of competence to conclude treaties, providedcertain of its provisions that: a. The violation is manifest; andThe character of a unilateral statement as a b. It concerned a rule of fundamentalreservation or an interpretative declaration is importance [Art. 46, VCLT].determined by the legal effect that its author 2. If the representative consented in violationpurports 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 theordinary meaning to be given to its terms. other negotiating states prior to the representative expressing such consent4. 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 ownConsent of all the parties is required. conduct to the error; and c. The circ*mstances were not such as toException: If the treaty itself so allows, two put that State on notice of a possibleStates 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 anotherA 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 coerced34, VCLT]. through acts or threats directed against him [Art. 51, VCLT];Exceptions: 7. If the conclusion of a treaty is procured bya. 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 a6. 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 intreaty or is otherwise established, its provisions accordance with the provisions of thedo 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 theto exist before the date of the entry into force of possibility of denunciation orthe treaty with respect to that party [Art. 28, withdrawal; orVCLT]. b. A right of denunciation or withdrawal may be implied from the nature of the7. Termination and Suspension treaty [Art. 56, VCLT]. 3. Conclusion of a subsequent inconsistenta. Invalid Treaties treaty [Art. 59, VCLT]; 4. Material breach or Termination orInvalidity 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW 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 the5. 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 was6. Fundamental Change of Circ*mstances 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 circ*mstances 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 circ*mstances 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 circ*mstances 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 Circ*mstances 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW to the further performance of its The Department of Foreign Affairs has the obligations under the treaty. power to determine whether an international5. 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 circ*mstance [Art. differentiated from Treaties 62, VCLT] Treaties Executive a. If a party may invoke a fundamental Agreement change of circ*mstances 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 to7. 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 notE. Treaties under Philippine Law Ratification ratification require by two-thirds Senate (2/3) of the ConcurrenceNote: see also “B. Relationship between Senate [Sec.International law and Philippine Domestic Law” 21, Art. VII,above 1987 Constitution]Philippine law makes a distinction betweentreaties and executive agreements. Both areequally binding, but treaties require the As to Effect Can repeal a Cannotconcurrence of the Senate to be effective, on statute and amend orwhile executive agreements do not. Municipal can be repeal a Law repealed by prior law andUnder international law, there is no difference a cannotbetween treaties and executive agreements in statute prevail overterms of their binding effects on the contracting astates concerned, as long as the negotiating subsequentfunctionaries have remained within their lapowers [Bayan Muna v. Romulo, G.R. No.159618 (2011)]. F. When there is Conflict between a Treaty and MunicipalTreaties have to be transformed in order to bepart of Philippine law. A treaty is “transformed” Lawwhen it is ratified by the Senate [Sec. 21, Art.VII, 1987 Constitution]. After ratification, a The doctrine of incorporation is appliedtreaty shall be deemed as if legislated by our whenever municipal tribunals are confrontedlegislature. with situations in which there appears to be a conflict between a rule of international law and Page 385 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWthe provisions of the constitution or statute ofthe local state. Efforts must be done to giveeffect to both since it is to be presumed thatmunicipal law was enacted with proper regardfor the generally accepted principles ofinternational law in observance of theIncorporation Clause.
In a situation, however, where the conflict isirreconcilable and a choice has to be madebetween a rule of international law andmunicipal law, jurisprudence dictates thatmunicipal law should be upheld by themunicipal courts.
The fact that international law has beenmade part of the law of the land does notpertain to or imply the primacy ofinternational law over national or municipallaw in the municipal sphere.
The doctrine of incorporation, as applied inmost countries, decrees that rules ofinternational law are given equal standing with,but are not superior to, national legislativeenactments. Accordingly, the principle lexposterior derogat priori takes effect [and] atreaty may repeal a statute and a statute mayrepeal a treaty.
In states where the Constitution is the highestlaw of the land, such as the Republic of thePhilippines, both statutes and treaties may beinvalidated if they are in conflict with theconstitution [Secretary of Justice v. Lantion,G.R. No. 139465 (2000)].
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VII. DOCTRINE OF STATE 1. Conduct of Organs of a StateRESPONSIBILITY [Article 4, ARSIWA] The conduct of any State organ shall beA. General Principles considered an act of that State whether theRelevant 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 stateentails the international responsibility of that An organ includes any person or entity whichState [Art. 1, ARSIWA]. has that status in accordance with the internal law of the State.B. Elements of an InternationallyWrongful Act: 2. Conduct of Persons orAn action or omission is an intentionally Entities Exercising Elements ofwrongful 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 thatThe characterization of an act of a state as State to exercise elements of governmentalinternationally wrongful is governed by authority shall be considered an act of theinternational law. Such characterization is not State, provided the person or entity is acting inaffected by the characterization of the same act that capacity.as lawful by internal law [Art. 3, ARSIWA]. 3. Conduct of Organs Placed atTheory of Objective or Strict the Disposal of a State byLiability Another State [Article 6,With respect to state responsibility, the theoryprovides 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 atC. Attribution whose disposal it is placed.Attribution or imputability is a legal constructwhereby an internationally unlawful conduct of 4. Excess of Authority ora State organ acting in that capacity is Contravention of Instructionsregarded as the conduct of the State itself, [Article 7, ARSIWA]making that State responsible for it as aninternationally wrongful act. These are unauthorized or ultra vires acts by a State organ, person, or entity empowered toIt proceeds from the theory that as an abstract exercise government authority.entity, the State can physically act only throughindividuals 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 contravenesa Special Rapporteur of the Commission of instructions.Human Rights, 38 International Legal Materials873 (1999)].
Page 387 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW5. Conduct Directed or This provides a This presents a higher threshold for lower threshold forControlled by a State [Article 8, attribution. attribution.ARSIWA] A general situation There need not be a of dependence and showing of actual orIf the person or group of persons is in fact support would thus direct control.acting on the instructions of, or under the be insufficient todirection 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 individuala. Effective Control responsibility. criminalUnder the law on state responsibility, a State is responsibility andresponsible only for the acts of its organs and the application of theover non-state actors over which it exercised rules of internationaleffective control [Nicaragua case, IICJ, humanitarian law(1986)]. [e.g. Prosecutor v. Tadic, ICTY AppealsFor there to be effective control, it should have Chamber (1995)].given instructions or provided the directionpursuant to which the perpetrators of the 6. Conduct carried out in thewrongful act acted. The agents or privatepersons should have been told what to do on absence or default of the officialall 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 theb. Overall Control absence or default of the official authorities andIn the Application of the Convention on the in circ*mstances such as to call for thePrevention and Punishment of the Crime of exercise of those elements of authority.Genocide Case (ICJ, 2007), the ICJ ruled thatthe “over-all control test” was only relevant in 7. Conduct of an insurrectionalso far as the question of characterization of theYugoslav 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 ofdetermining whether a state is responsible for The conduct of an insurrectional movementthe acts of certain non-state organs involved in which becomes the new Government of a Statethat 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW8. 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 formerConduct not attributable under the preceding State to the extent that the act remains withinarticles shall nevertheless be considered an the limits of that consent.act of that State if and to the extent that theState acknowledges and adopts the conduct inquestion 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 UNAnother 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 an1. 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 circ*mstances 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 circ*mstances 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 circ*mstances of the make reparations act. b. Notify the responsible State of any decision to take countermeasuresD. Circ*mstances Precluding and offer to negotiate with that StateWrongfulness (Defenses) i. Exception: Notwithstanding the obligation to notify, theAlthough a State which fails to act in conformity injured State may take suchwith an international obligation will typically be urgent countermeasures assubject to international responsibility for the are necessary to preserve itswrongful act, the State may be excused from rights.performance of an international obligation if 2. Countermeasures may not be taken orcirc*mstances precluding wrongfulness are must be suspended without unduepresent. delay if: a. Internationally wrongful act has ceased Page 389 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW 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 safeguardb. 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 this4. Force Majeure [Art. 23, part [Art. 32, ARSIWA].ARSIWA] None of the circ*mstances listed aboveGeneral Rule: If the act is due to force precludes the wrongfulness of any act of amajeure, that is the occurrence of an irresistible State which is not in conformity with anforce or of an unforeseen event, beyond the obligation arising under a peremptory norm ofcontrol of the State, making it materially general international law [Art. 26, ARSIWA].impossible in the circ*mstances to perform theobligation. E. Consequences Of AnExceptions: Internationally Wrongful ActThe 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 the5. 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 asituation of distress, of saving the author’s lifeor the lives of other persons entrusted to theauthor’s care.
Page 390 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW1. Cessation and non-repetition i. Restitution [Art. 35, ARSIWA]
The State responsible for the wrongful act is A State responsible for an internationallyunder the obligation to: wrongful act is under an obligation to makea. Cease the act if it is still continuing; and restitution, that is, to re-establish the situationb. Offer appropriate assurances and which existed before the wrongful act was guarantees of non-repetition, if committed, provided and to the extent that circ*mstances so require [Art. 30, restitution: ARSIWA]. (a) Is not materially impossible; (b) Does not involve a burden out of allCessation serves as a preventive function proportion to the benefit deriving fromupon 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 that2. Reparation existed prior to the occurrence of the wrongful act, and does not require a hypothetical inquiryThe responsible State is under an obligation to into what the situation would have been if themake 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 toInjury includes any damage, whether material ensure full reparation for the damage causedor 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 theconsequences of the illegal act and reestablish The State responsible is under an obligation tothe 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 orby 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 toMaterial Damage - Refers to damage to punish the responsible State, nor doesproperty or other interests of the State and its compensation have an expressive ornationals 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 onesor personal affront associated with an intrusion The State responsible is under an obligation toon one’s home or private life [ARSIWA Draft give satisfaction for the injury caused by thatArticles]. 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, anFull reparation for the injury caused by the expression of regret, a formal apology orinternationally 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 theARSIWA]. 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWcompensation have not provided full reparationthat satisfaction may be required [ASR DraftArticles].
It is the remedy for injuries not financiallyassessable. These injuries are frequently of asymbolic character, arising from the very fact ofthe breach of the obligation, irrespective of itsmaterial consequences for the Stateconcerned [ARSIWA Draft Articles].
4. Other PrinciplesInterest on any principal sum due under thischapter shall be payable when necessary inorder to ensure full reparation. The interest rateand mode of calculation shall be set so as toachieve that result [Art. 38, ARSIWA].
Contribution to the InjuryIn the determination of reparation, accountshall be taken of the contribution to the injuryby willful or negligent action or omission of theinjured State or any person or entity in relationto whom reparation is sought [Art. 39,ARSIWA] .
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VIII. REFUGEES 3. He has acquired a new nationality, and enjoys the protection of the country of his new nationality; orA. General Principles 4. He has voluntarily re-established himself inReference Treaties: The 1951 Convention the country which he left or outside whichRelating to the Status of Refugees (1951 he remained owing to fear of persecution;Convention) and the 1967 Protocol Relating to orthe Status of Refugees (1967 Protocol) 5. He can no longer continue to refuse to avail himself of the protection of the country ofB. Definition his nationality because the circ*mstancesA person outside the country of his in connection with which he has beennationality owing to a well-founded fear of recognized as a refugee have ceased tobeing persecuted for reasons of race, religion, exist;nationality, membership of a particular social 6. Being a person who has no nationality hegroup or political opinion, is and is unable or, is, able to return to the country of his formerowing to such fear, is unwilling to avail himself habitual residence [Art. 1(C), 1951of the protection of that country; or who, not Convention].having a nationality and being outside thecountry of his former habitual residence as a D. The Convention shall NOTresult of such events, is unable or, owing tosuch 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 thanThe term “the country of his nationality” shall the United Nations High Commissioner formean 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 competentnationality if, without any valid reason based on authorities of the country in which he haswell-founded fear, he has not availed himself of taken residence as having the rights andthe protection of one of the countries of which obligations which are attached to thehe is a national. possession of the nationality of that country [Art.1(E)].Refugees vs. Internally 3. Any person with respect to whom there areDisplaced Persons serious reasons for considering that:Refugees are people as defined above while a. He/she has committed a crime againstinternally displaced persons are those who peace, war crime, or a crime againsthave 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 ofviolation of human rights, or natural or man- refuge prior to his admission to thatmade 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 contrarythe United Nations’ Secretary-General on to the purposes and principles of theInternally Displaced Persons, February 14, United Nations [Art. 1(F)].1992]. E. General Obligations ofC. The following are Refugees RefugeesNot Covered by the Convention: Every refugee has duties to the country in1. 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 for2. Having lost his nationality, he has the maintenance of public order [Art. 2, 1951 voluntarily re-acquired it; or Convention].
Page 393 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWF. 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 thethe 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 todependent on personal status, more refugees who are unable to obtain aparticularly rights attaching to marriage, shall travel document from the country ofbe respected by a Contracting State, subject to their lawful residence [Art. 28(1)]compliance, if this be necessary, with the c. Permission to transfer assetsformalities required by the law of that State, necessary for their resettlement inprovided 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 until1951 Convention]. their status in the country is regularized or they obtain admission into another countryH. Rights of a Refugee [Art. 31]
Among those enumerated in the 1951 I. Principle of Non-RefoulmentConvention 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 where2. 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 final3. 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW
IX. EXTRADITION duty, or to an insufficiency of governmental action so far short of international standards that every reasonable andA. The General Rule on Standard impartial man would readily recognize itsof Treatment insufficiency [Neer Case, PCIJ (1926)].
Flowing from its right to existence and as an 1. How To Enforce theattribute of sovereignty, no State is under any International Responsibility arisingobligation to admit aliens. The state can from the International Delinquencydetermine in what cases and under what There must be:conditions it may admit such. Once it admits a. Exhaustion of local (refers to the Statealiens, under the international standard of where the international delinquencyjustice, which calls for compliance with the happened) administrative remedies; andordinary norms of official conduct observed in b. Representation of the alien by his owncivilized jurisdictions, aliens should be state (this refers to the exercise ofprotected by certain minimum standards of diplomatic protection) in the internationalhumane protection, however harsh the claim for damages.municipal laws of a state may be.
Territorial sovereignty involves the exclusive C. Rules on Diplomaticright to display the activities of a State. This Protection from the Draftright has a corollary, a duty: the obligation to Articles on Diplomaticprotect within the territory the rights of otherStates, in particular, their right to integrity and Protection (ADP), 2006:inviolability in peace and in war, together withthe rights which each State may claim for its 1. Definition of Diplomaticnationals 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 otherHowever, an alien cannot claim a preferred means of peaceful settlement, of theposition vis-à-vis the national of the State [see responsibility of another State for an injuryCalvo Clause, infra]. caused by an internationally wrongful act of that State to a natural or legal person that is aB. State Responsibility when it national of the former State with a view to thecomes to Treatment of Aliens implementation of such responsibility.
A state may be held responsible provided that:: 2. Who is entitled to exercise1. 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 nationality3. 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 nationalLiability will attach to the State where its in accordance with draft article 8.treatment of the alien falls below theinternational standard of justice or where it is 3. Requirement of exhaustion ofremiss in according him the protection or local remedies beforeredress that is warranted by the circ*mstances. presentation of internationalThe 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 internationaltreatment of an alien, in order to constitute an claim in respect of an injury to a national orinternational delinquency, should amount to other person before the injured person hasan outrage, to bad faith, to willful neglect of exhausted all local remedies.
Page 395 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWb. “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 anyc. 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 toExhaustion of Local Remedies be exercised [Government of[Art. 15, ADP]: Hong Kong SpecialLocal remedies do not need to be exhausted Administrative Region v. Olalia]where: 1. There must be an extradition treaty in forcea. 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 establishesd. The injured person is manifestly precluded probable cause to believe that the person from pursuing local remedies; or to be extradited committed the offensese. 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 on1. Definition ExtraditionExtradition is the surrender by one nation toanother of an individual accused or convicted a. The duty to extradite must be basedof an offense outside of its own territory, andwithin the territorial jurisdiction of the other, on a treatywhich, being competent to try and to punishhim, demands the surrender [Government of It is not part of CIL, although the duty toHongkong Special Administrative Region v. extradite exists only for some internationalMuñoz, G.R. No. 207342 (2016)]. crimes. Thus, a state must extradite only when obliged by treaty to do so [Government ofExtradition 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 orconvicted of a crime within its territorial Principle of Specialtyjurisdiction, and the correlative duty of the other A fugitive who is extradited may be tried onlystate 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 offensesAdministrative Region v. Olalia, G.R. No. in the extradition treaty [US v. Rauscher, 119153675 (2007)]. U.S. 407 (1886)].
Page 396 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWRule of Double Criminality exhibiting the penal aspect of theThe act for which extradition is sought must be process.punishable in both the requesting andrequested States [Government of Hongkong The evaluation process itself is like aSpecial Administrative Region v. Muñoz, G.R. preliminary investigation since both proceduresNo. 207342 (2016)]. may have the same result: the arrest and imprisonment of the respondent [Secretary ofb. 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. Deportationnot a criminal proceeding which will call intooperation all the rights of an accused as Extradition Deportationguaranteed by the Bill of Rights [Sec. of Justicev. Lantion, G.R. No. 139465 (2000)]. Effected at the Unilateral Act of the request of another Statec. Bail may be granted to the extraditee Stateon the basis of clear and convincingevidence that he is not a flight risk Based on offenses Based on causes committed in the arising in the localThe potential extraditee must prove by “clear state of origin stateand convincing evidence” that he is not a flightrisk and will abide by all the orders and Calls for the return An undesirable alienprocesses of the extradition court [Government of the fugitive to the may be deported toof Hong Kong Special Administrative Region v. requesting state a state other thanOlalia, G.R. No. 153675 (2007)]. his own or his state of origin.d. There must be compliance withprocedural 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW 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 aX. BASIC PRINCIPLES OF state party”.
INTERNATIONAL HUMAN A. The Universal Declaration ofRIGHTS LAW Human Rights (UDHR)1. Definition of Human Rights The UDHR is the first comprehensive catalogHuman rights are those fundamental and of human rights proclaimed by an internationalinalienable rights which are essential for life as organization.a human being. They are recognized by theinternational community as a whole through It is not a treaty. It has no obligatory charactertheir protection and promotion under because it was adopted by the UN Generalcontemporary international law. Assembly as Resolution 217A (III). As a resolution, it is merely recommendatory.2. Definition of International Accordingly, it has been observed that theHuman Rights Law Universal Declaration of Human Rights noInternational 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 isways or to refrain from certain acts, in order to rather an authoritative statement of thepromote and protect human rights and international community. Thus, a Declarationfundamental 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 custom3. Classifications of Human become recognized as laying down rules binding upon the States. Indeed, severalRights commentators have concluded that thea. First generation rights consist of civil and Universal Declaration has become, in toto, a political rights; part of binding, customary international lawb. 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 (2dc. 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 been4. The Distinction Between First interpreted by this Court as part of the generallyGeneration 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 objectivelyobligatory, whatever the economic condition or The civil and political rights (1 st Generationother conditions of the state obliged. 2 nd Rights) enumerated in the UDHR include rightsGeneration Rights are relatively or subjectively such as:obligatory, states are required to progressively 1. The right to life, liberty, privacy and securityachieve 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 arbitraryb. As to Derogation arrest, detention or exile; 4. The right to recognition as a person before1st Generation rights are derogable only in the law;times of public emergency. 2nd Generation Page 398 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW5. Equal protection of the law; 9. The right to protection of a child as required6. 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 not7. 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 death8. 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 personThe economic, social and cultural rights before the law [Art. 16]enumerated in the UDHR include rights such 7. Freedom of thought, conscience andas: 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 to4. The right to form and join trade unions; ensure to all individuals within their territory5. 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 othercomplete 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 orCivil 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 personrights, although it lists more rights than the whose rights or freedoms are violated haveUDHR, namely: an effective remedy, notwithstanding that1. The right to self-determination [Art. 1]; the violation has been committed by2. 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, and3. The right to compensation in case of that they shall enforce the remedy when unlawful arrest [Art. 9]; granted4. The right to legal assistance in criminal 5. To ensure that the competent authorities prosecution [Art. 14]; shall enforce such remedies when granted5. 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWC. The International Covenant on grave and flagrant violation of human rights and fundamental freedomsEconomic, Social and Cultural proclaimed in the Universal DeclarationRights (ICESCR) of Human Rights and reaffirmed and developed in international instrumentsIt embodies the second generation of human in this field.rights, although it lists more rights than the ○ On the principle of non-discriminationUDHR, namely: vis-à-vis the right to electorala. The right to work [Art. 6]; participation [Ang Ladlad LGBT Partyb. 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-discriminationd. The right to strike and form/join trade requires that laws of general unions [Art. 8]; application relating to elections bee. 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 notg. The right to be free from hunger [Art. 11]; specifically enumerated as a statush. The right to education [Art. 13]; or ratio for discrimination in Articlei. The right to enjoy the benefits of scientific 26 of the ICCPR, the ICCPR progress [Art. 15]; Human Rights Committee hasj. 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 obligatemaximum of its available resources, with a the Philippines to grant nationalityview to achieving progressively the full from birth and ensure that no childrealization of the rights enumerated in the is stateless.covenant by all appropriate means.
1. Common Provisions in theICCPR and ICESCRThe common provisions of the two covenantsdeal 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; andc. 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 onHuman 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW
XI. BASIC PRINCIPLES OF A. Categories of ArmedINTERNATIONAL Conflict:HUMANITARIAN LAW 1. International Armed ConflictsInternational Humanitarian Law (IHL) is the (IAC)branch of public international law whichgoverns armed conflicts to the end that the use Definition: An IAC occurs when one or moreof violence is limited and that human suffering states have recourse to armed force againstis mitigated or reduced by regulating or limiting another state, regardless of the reasons or thethe 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 inThis used to be known as the Laws of War their international relations from the threat orwhich provides for instances when the use of use of force against the territorial integrity orarmed force is justifiable (jus ad bellum) and political independence of any state, or in anyregulates the conduct of armed conflict (jus in other manner inconsistent with the Purposes ofbello). 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWArmed conflict does not include internal rights. They shall be protected against actsdisturbances or tensions such as: of violence or reprisals [Legality of thea. Riots; Threat or Use of Nuclear Weaponsb. Isolated and sporadic acts of violence; and Advisory Opinion (ICJ, 1996)].c. Other acts of a similar nature. B. Principles of International3. War of National Liberation Humanitarian LawArmed conflicts in which people are fightingagainst colonial domination and alien 1. Definitionsoccupation and against racist regimes in theexercise of their right to self-determination [Art. a. Combatants1(4), Protocol I]. These are members of the armed forces of a party to a conflict [Art. 3(2), Protocol I]. TheyCategories: have the right to participate directly anda. Colonial domination; indirectly in hostilities [Art. 43(2), Protocol I].b. Alien occupation; and Only combatants are allowed to engage inc. 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 toof States the conflict; 2. He clearly expresses an intention toIn general, IHL defines the following surrender; orobligations: 3. He has been rendered unconscious or isa. 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 Personsb. 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 medicald. 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 termse. 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW 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 civilians2. 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 times3. 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 to2. Treatment of Civilians the conflict, including militias or volunteer corps;For purposes of protection, civilians are further 2. Militias or volunteer corps operating in orclassified as: outside their own territory, even if such1. Civilians who are victims of conflict in territory is occupied, provided: countries involved; a. They are being commanded by a2. Civilians in territories of the enemy; person responsible for his3. 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; andHumanity d. Conduct their operations inIn cases not covered by other international accordance with the laws andagreements, civilians and combatants remain customs of war.under the protection and authority of the 3. Members of regular armed forces whoprinciples of international law derived from profess allegiance to a government orestablished custom, from the principles of authority not recognized by the detaininghumanity and from the dictates of public power;conscience [Art. 1(2), Protocol I]. 4. Civilians who accompany the armed forces, provided that they have receivedEnsures that, regardless of lack of an authorization from the armed forces whichinternational agreement, civilians and they accompany;combatants retain protection based on the 5. Members of crews of merchant marine andprinciples 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW 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 a7. 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 withRights of prisoners of war food, clothing or relief required by1. To be treated humanely; humanity.2. Not to be subject to torture; 7. If the neutral power receives escaped3. To be allowed to communicate with their prisoners of war, it shall leave them at families; liberty. It may assign them a place of4. 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 the6. To keep personal belongings; passage into its territory of the sick and7. To proper burial; wounded if the means of transport bringing8. To be grouped according to nationality; them does not carry personnel or materials9. To the establishment of an informed of war. bureau; and10. 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 theD. Law on Neutrality conflict; 2. Designated by one party to an armedIt 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 humanitarianparticipant of such conflict, and the duty of interests in the conflict, the performance ofparticipants to refrain from violating the which IHL defines specific rights and dutiesterritory, 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 partNeutrality 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 andto the belligerents with their recognition. Duties of Neutral Powers (1907)].
The Geneva Convention (III) allows neutral A neutral cannot avail himself of his neutralitypowers to cooperate with the parties to the 1. If he commits hostile acts against aarmed 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 theThe Hague Convention Respecting the Rights parties [Art. 17, Hague Conventionand Duties of Neutral Powers (1907) governs Respecting the Rights and Duties ofthe 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.
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XII. LAW OF THE SEA immediate vicinity, the method of straight lines joining the appropriate points may be employed in drawing the baseline fromA. Definition which the breadth of the territorial sea isThe United Nations Convention on Law of the measured [Art. 7, UNCLOS].Sea (UNCLOS) is the body of treaty rules andcustomary norms governing the use of the sea, Special Baseline forthe exploitation of its resources, and theexercise of jurisdiction over maritime regimes Archipelagic States [Art. 47,[Magallona]. UNCLOS] a. An archipelagic State may draw straightIt is the branch of public international law which baselines join the outermost points of theregulates the relations of states with respect to outermost islands and drying reefs of anthe use of the oceans. archipelago, provided that within such baselines are included the main islandsB. Nature of the UNCLOS treaty and an area in which the ratio of the waterUNCLOS III has nothing to do with the to the area of the land, including atolls, isacquisition (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, thesea-use rights over maritime zones [Magallona contiguous zone, and the exclusivev. Ermita, G.R. No. 187167 (2011)]. economic zone, are measured from the straight archipelagic baselinesThe UNCLOS is a product of internationalnegotiation that seeks to balance State D. Archipelagic Statessovereignty (mare clausum) and the principleof freedom of the high seas (mare liberum). It is a state made up of wholly one or moreThe 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 UNCLOSgives to the coastal State sovereign rights in An archipelago is a group of islands, includingvarying degrees over the different zones of the parts of islands, interconnecting waters andsea which are: 1) internal waters, 2) territorial other natural features which are so closelysea, 3) contiguous zone, 4) exclusive related that such islands, waters and naturaleconomic 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 Rockssea 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 atzone, is measured. Its purpose is to determine high tide.the starting point to begin measuring maritimezones boundary of the coastal state. Rocks which cannot sustain human habitation or economic life of their own shall have noThe general rule is that there are two types of exclusive economic zone or continental shelfBaselines: [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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWb. 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 the3. Archipelagic Waters UNCLOS, archipelagic waters consist mainlyThese are the waters enclosed by the straight of the “waters around, between, andarchipelagic 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 isThey are subject to the sovereignty of the not mandatory upon concerned states toarchipelagic State, but subject to the right of declare themselves as archipelagic states. Theinnocent 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 ofb. 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 andc. 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 ad. 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 SeaLanes are determined F. Territorial SeaThe archipelagic State proposes it to theInternational Marine Organization, which will These waters stretch up to 12 miles from thethen adopt the Sea Lanes through Art. 53 (9) of baseline on the seaward direction. They arethe UNCLOS. subject to the jurisdiction of the coastal state, Page 406 of 412 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWwhich jurisdiction almost approximates that among foreignwhich is exercised over land territory. ships, and such suspension isThe sovereignty of a coastal State extends, essential for thebeyond its land territory and internal waters protection of itsand, in the case of an archipelagic State, its security, andarchipelagic waters, to an adjacent belt of sea, suspension isdescribed as the territorial sea. This effective only aftersovereignty extends to the air space over the having been dulyterritorial sea as well as to its bed and subsoil published [Art. 25,[Art. 2, UNCLOS]. UNCLOS] In the designation of Designation of sea1. Rights that are Available to all sea lanes and traffic lanes and traffic separation separation schemesStates in Territorial Sea schemes, the is subject to coastal State shall adoption bya. Innocent Passage only take into competentRefers to navigation through the territorial sea account the internationalwithout entering internal waters, going to recommendations of organization uponinternal waters, or coming from internal waters the competent the proposal andand making for the high seas [Art. 18 (1), international agreement of statesUNCLOS]. 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 tob. 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 toof 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWG. Contiguous Zone installations and structures [Art. 60, UNCLOS];The contiguous zone is that which is f. Determine the allowable catch of livingcontiguous 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 thebaselines 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 ofH. 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 responsibilitystretch of area up to 200 miles from the to utilize, manage and conserve the livingbaselines. Within this zone, a State may resources within their EEZ (i.e. ensuring thatregulate non-living and living resources, other living resources are not endangered byeconomic resources, artificial installations, overexploitation), and the duty to promotescientific 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 maximumin the EEZ allowable catch is determined to be above theThe UNCLOS gives the coastal State capacity of the State to harvest.sovereign rights over all economic resources ofthe sea, seabed, and subsoil in an area The State shall give other States access to theextending not more than 200 nautical miles surplus by means of arrangements allowablebeyond 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 inthe 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 livingb. 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 exploitatione. 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWI. Continental Shelf Note: “Exclusive” means that if the coastal does not explore or exploit its resources, no1. Extended Continental Shelf other state can without the State’s consent.It is the seabed and subsoil of the submarineareas extending beyond the territorial sea of Exclusive Continental Shelfthe coastal state throughout the natural Economic Zoneprolongation of its land territory up to: Coastal state is No duty to managea. The outer edge of the continental margin; obliged to manage and conserve living or and conserve living resourcesb. 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 bothSubmerged prolongation of the land mass of to the seabed and waters superthe continental state, consisting of the subsoil adjacent to thecontinental shelf proper, the continental slope, seabed and those ofand 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 coastala. 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 sedentaryb. 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 engaged4. Exclusive Rights of the in the exploration and exploitation of theCoastal State in the Continental resources of the Area, including theShelf: 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 byb. 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAWJ. The International Tribunal for 3. Sources of Law to be Appliedthe Law of the Sea (ITLOS) in ITLOS:The ITLOS is an independent judicial body The court or tribunal shall apply the UNCLOSestablished by the Third United Nations and other rules of international law notConvention 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 aequoapplication of the convention. et bono (what is equitable and just) if the parties so agree.Composition: Election of 21 members by theState parties.
1. The Settlement of Disputesa. 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 writtenrevocable and replaceable declaration, tosubmit the dispute to the following:a. ITLOS;b. ICJ;c. Arbitral tribunal; ord. Special arbitral tribunal.
2. Jurisdiction of the ITLOSa. Any dispute submitted to it concerning the application or interpretation of UNCLOS; orb. 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
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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 orA. Definition avoid environmental degradation [PrincipleIt is the branch of public international law 15, Rio Declaration].comprising those substantive, procedural, andinstitutional rules which have as their primary 4. Sustainable Developmentobjective the protection of the environment[Sands]. It is development that meets the needs of the present without compromising the abilityThe protection of the environment is a vital part of future generations to meet their ownof contemporary human rights doctrine, for it is needs [Gabcikovo-Nagymaros Project, ICJa sine qua non for numerous human rights (1997)].such as the right to health, and the right to lifeitself [Danube Dam Case, ICJ (1997)]. No State has the right to use or permit the use of its territory in such a manner as toB. 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 consequence1. 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; and2. Common but Differentiated b. A State has a duty to prevent and itResponsibilities 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 States3. 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 UP Law Bar Operations Commission 2022 PUBLIC INTERNATIONAL LAW POLITICAL LAW 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 EnvironmentDuring 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)].
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