Political Law Reviewerdocshare04.docshare.tips/files/26973/269738585.pdf · form with annotations,...

JANS AUZA – Political Law Reviewer 1

Political

Law

Reviewer

Jans Auza

10-17-83


FOREWORD

First and foremost, there is NO claim of ORIGINALITY in creating this work, except for

the fact of organizing, compiling and editing various sources. This is basically in CODAL

form with annotations, primarily, from San Beda Memory Aid in Political Law, the book

of Antonio Nachura in Political Law, Review materials from Recoletos Review Center,

the works of Atty. Angel Ucat, Lawphil.net, Chan Robles Virtual Law Library, Review

Lectures and classroom discussions, and some selected Supreme Court decisions.

Some cited cases are personally researched and some are merely copied from different

sources. Provisions not anymore explained are either self-explanatory or are not critical

areas for the Bar Examination. This is created/organized for the purpose of taking the

BAR. This is intended to be used as a PERSONAL Review material in Political Law and

other related laws falling under the coverage of the Bar Examination.

DISCLAIMER

This work is PERSONALLY prepared with a very limited time. The text may contain

some clerical and grammatical errors. Too little time was available for the editing of this

work. Nevertheless, this is created with the sincere belief that this is personally helpful

to the author for purposes of the BAR as well as to any person who may, in any way,

show interest. This, however, is NOT intended for sale. It may be copied by friends and

person/s who might be interested in this work. The author is in NO WAY liable for any

erroneous information contained in this work. Questions, suggestions and/or

clarifications are, however, WELCOME.

JANNYCER AUZA

Poblacion, San Miguel, Bohol CP # 09091289995


POLITICAL

LAW That branch of public law which deals with the organization and operations of the governmental organs of the state and defines the relations of the State with the inhabitants of its territory (P. vs. Perfecto, 43 Phil. 887). CONSTITUTIONAL LAW The study of the maintenance of the proper balance between authority as represented by the three inherent powers of the State and liberty as guaranteed by the Bill of Rights. SCOPE/DIVISIONS OF POLITICAL LAW

1. Constitutional Law 2. Administrative Law 3. Law on Municipal Corporations 4. Law on Public Officers 5. Election Laws

BASIS OF STUDY

1. 1987 Constitution 2. 1935 and 1973 Constitutions 3. Organic Laws

Philippine Bill of 1902

Jones Law of 1916

Tydings- McDuffie Law of 1934

4. Statutes, Executive Orders, Presidential Decrees

5. U.S. Constitution 6. Judicial Decisions

CONSTITUTION That body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised (Cooley) With particular reference to the Constitution of the Philippines: That written instrument enacted by direct action of the people by which the fundamental powers of the government are established, limited and defined, and by which those powers are distributed among several departments for their safe and useful exercise for the benefit of the body politic (Malcolm). PURPOSES:

1. Prescribe framework of system of government

2. Assignment of powers and duties to several departments

3. Establishment of founding principles of the government

CLASSIFICATION:

1. Written vs. Unwritten 2. Enacted (conventional) vs. Evolved

(cumulative) 3. Rigid vs. Flexible

QUALITIES OF A GOOD WRITTEN CONSTITUTION

1. Broad - It must be comprehensive enough to provide for every contingency.

2. Brief – It must confine itself to basic principles to be implemented.

3. Definite – To prevent ambiguity in its provisions which could result in confusion and divisiveness among the people (Cruz).

Essential Parts of a Good Written Constitution:

1. Constitution of Liberty. The series of prescriptions setting forth the fundamental civil and political rights of the citizens and imposing limitations on the powers of government as a means of securing the enjoyment of those rights (Art. III – The Bill of Rights).

2. Constitution of Government. The series of provisions outlining the organization of the government, enumerating its powers, laying down certain rules relative to its administration, and defining the electorate (Arts. VI, VII, VIII and IX).

3. Constitution of sovereignty. The provisions pointing out the mode or procedure in accordance with which formal changes in the fundamental law may be brought about (Art. XVII).

Interpretation of the Constitution: (Francisco vs. House of Representatives, GR No. 160261, Nov. 10, 2003)

1. Verba Legis – whenever possible, the words of the constitution must be given their ordinary meaning, except when technical terms are employed.

2. Ratio legis est anima – when there is ambiguity, the words of the constitution should be interpreted in accordance with the intent of the framers.


As we [the SC] have held in League of Cities of the Philippines v. Commission on Elections— Ratio legis est anima. The spirit rather than the letter of the law. A statute must be read

according to its spirit or intent, for what is within the spirit is within the statute although it is not within its letter, and that which is within the letter but not within the spirit is not within the statute. Put a bit differently, that which is within the intent of the lawmaker is as much within the statute as if within the letter, and that which is within the letter of the statute is not within the statute unless within the intent of the lawmakers. Withal, courts ought not to interpret and should not accept an interpretation that would defeat the intent of the law and its legislators (cited in Navarro vs. Executive Secretary, GR No. 180050, April 12, 2011).

3. Ut magis valeat quam pereat – the constitution has to be interpreted as a whole. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together (Civil Liberties Union vs. Executive Secretary, 194 SCRA 317).

If the plain meaning of the word is not found

to be clear, resort to other aids is available. It is permissible to consult the debates of the Constitutional Commissions.

Constitution is to be interpreted on what ―appears upon its face‖.

In case of doubt, the provisions should be considered:

a. Self-executing b. Mandatory rather than directory c. Prospective rather than retroactive

SELF-EXECUTING PROVISIONS A provision which is complete in itself and becomes operative without the aid of supplementary or enabling law, or that which supplies a sufficient rule by means of which the right it grants may be enjoyed or protected.

Principles and State Policies are generally non-self executing

The provisions Bill of Rights are, however, generally self-executing.

THE POWER OF JUDICIAL REVIEW

…………………………………………………

JUDICIAL REVIEW The power of the courts to test the validity of executive and legislative acts in light of their conformity with the Constitution. This is not an assertion of superiority by the courts over the other departments, but merely an expression of the supremacy of the Constitution (Angara vs. Electoral Commission, 63 Phil. 139). BY WHOM EXERCISED By the Supreme Court and such other lower courts implicitly from sec. 5(2), Art. VIII.

Every court should approach a constitutional question with grave care and considerable caution (CIR vs. CTA, 195 SCRA 444).

All actions assailing the validity of a statute, treaty, PD, order or proclamation, notice to SolGen is mandatory (sec. 3, Rule 64, ROC).

FUNCTIONS OF JUDICIAL REVIEW

1. Checking – invalidating a law or executive act that is found to be contrary to the Constitution.

2. Legitimating – upholding the validity of the law that results from mere dismissal of a case challenging the validity of the law.

3. Symbolic Function- Supreme Court has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines or rules, and the symbolic function to educate the bench and the bar on the extent of protection given by the Constitutional guarantees.

REQUISITES OF JUDICIAL REVIEW/INQUIRY

1. Actual case or controversy – A conflict of legal rights, an assertion of opposite legal claims susceptible of judicial determination.

a. The controversy must be definite and concrete involving a real clash of adverse interests.

b. A request for advisory opinion is not actual case.

c. The issues raised must not be conjectural or anticipatory.

d. The issues raises must not be moot and academic.


Exceptions to the mootness rule: I. There is grave violation of the

Constitution. II. Paramount public interest because

of exceptional circumstances. III. Court exercises symbolic function. IV. Issues raised are capable of

repetition yet evading review. Requisites:

1) The life of the controversy is too short to be fully litigated prior to its termination.

2) There is reasonable expectation that the same problem would arise again.

2. Raised by the proper party.

A party who has sustained or is in imminent danger of sustaining an injury as a result of the act complained of. Samples:

a) Province has personality to question provisions of the GAA relative to projects funded by IRA (Province of Batangas vs. Romulo, 429 SCRA 736).

b) Legislator [senator] has standing to bring suit for usurpation of legislative powers (Ople vs. Torres, 293 SCRA 141).

c) Passengers of buses, trains and jeepneys in questioning DOTC memo authorizing operators to increase/decrease fares (KMU vs. Garcia, 239 SCRA 386).

d) Registered voters in cases involving the right of suffrage.

e) Taxpayers in cases involving taxing or spending powers of Congress. Requisites:

1) Public funds are disbursed by a political subdivision or instrumentality;

2) A law is violated or some irregularity is committed by allegedly ultra vires act (AGLP vs. CA, 260 SCRA 250).

f) The government is a proper party to

question the validity of its own laws (P. vs. Vera, 65 Phil. 56).

NOTE: A party’s standing in court is a procedural technicality which may be set aside

by the court in view of the importance of the issues involved.

Issues of paramount interest (Kilosbayan vs. Guingona, 232 SCRA 110).

Issues of transcendental importance (ITF vs. Comelec, GR No. 159139, Jan. 13, 2004).

―FACIAL CHALLENGE‖ A facial challenge to a legislative act is the most difficult challenge to mount successfully since the challenge must establish that no set of circumstances exits under which the act would be valid (Estrada vs. Sandiganbayan, GR No. 148560, Nov. 19, 2001).

This challenge operates properly in the realm of freedom of expression.

Take note that legislative act infringing upon freedom of expression comes to court with a heavy presumption of unconstitutionality.

3. The question must be raised at the

earliest possible opportunity. As a rule it must be raised in the pleadings, however –

a) In criminal cases – the question can be raised at any time at the discretion of the court.

b) In civil cases – at any stage if necessary for the determination of the case itself.

c) At any stage – if the issue involves jurisdiction of the court, except when there is estoppel.

NOTE: The question of unconstitutionality may not necessarily be raised in the pleadings if the tribunal where the case is initially filed or pending has no jurisdiction to resolve question of unconstitutionality.

4. The decision on the question must be the very lis mota of the case.

Ratio: separation of powers demands proper respect be accorded the other departments. The Court stressed that it will not pass upon a question of constitutionality if the case can be disposed of on some other ground (Mirasol vs. CA). Every law has in its favor the presumption of constitutionality, and to justify its nullification,


there must be a clear and unequivocal breach of the Constitution, and not one that is doubtful, speculative or argumentative (Arceta vs. Mangrobang, GR No. 152895, June 15, 2004).

EFFECTS OF DECLARATION OF

UNCONSTITUTIONALITY:

a) Orthodox view: an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative, as if it had not been passed at all.

b) Modern view: certain legal effects of the statute prior to its declaration of unconstitutionality may be recognized [Operative Fact Doctrine] (Pelaez vs. Auditor General, 15, SCRA 569)

Partial unconstitutionality: Requisites:

1. Legislature must be willing to retain the valid portion/s, usually shown by the presence of a separability clause; and

2. The valid portion can stand independently as a law.

Relative Constitutionality The Constitutionality of a statute cannot, in every instance, be determined by a mere comparison of its provisions with applicable provisions of Constitution since the statute may be constitutionally valid as applied to one set of facts and invalid in its application to another. A statute valid at one time may become void at another time because of altered circumstances. Thus, if a statute in its practical operation becomes arbitrary or confiscatory, its validity, even though affirmed by a former adjudication, is open to inquiry and investigation in the light of changed conditions (Central Bank Employees Ass. vs. BSP, GR No. 148208, Dec. 15, 2004). Doctrine of Constitutional Supremacy Under the doctrine of constitutional supremacy, if a law or contract violates any norm of the Constitution, that law or contract, whether promulgated by the legislative or by the executive branch or entered into by private persons for private purposes, is null and void and without any force and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the nation, it is deemed written in every statue and contract (Manila Prince Hotel vs. GSIS, 267 SCRA 408 [1997]).

THE PHILIPPINE AS A STATE

…………………………………………………

STATE A community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing a government to which a great body of inhabitants render habitual obedience (CIR vs. Campos Rueda, 42 SCRA 23)

STATE NATION GOVERNMENT

Legal or juristic

concept

Ethnic or

racial concept

Merely an instrumentality of the State through which

the will of the State is implemented and

realized.

ELEMENTS OF A STATE 1. People

a. Adequate number for self-defense and sufficiency;

b. Of both sexes for perpetuity.

2. Territory (Art. I) – see discussions thereunder. 3. Government – the agency or instrumentality

thorough which the will of the State is formulated expressed and realized (US vs. Door, 2 Phil. 332). Government of the Philippines – is the corporate governmental entity through which the functions of government are exercised throughout the Philippines [first portion of sec. 2(1), Administrative Code of 1987]. Functions:

a. Constituent – mandatory for the government (exercise of sovereignty).

b. Ministrant – optional for the government (proprietary functions)

Note: The SC noted that the

distinctions between the two functions had become blurred (PVTA vs. CIR, GR No. L-32052, July 25, 1975).

Doctrine of Parens Patriae – parent of the people The government may act as guardian of the rights of the people who may be disadvantaged or suffering from some disability or misfortune (Government vs. Monte de Piedad, 35 SCRA 738).


Classification of Governments

A. As to existence or absence of title and/or control

a. De jure – has a rightful title but no power or

control, either because same has been withdrawn from it or because it has not yet actually entered into the exercise thereof.

The government under Cory Aquino and the Freedom Constitution was a de jure government because it was established by authority of the legitimate sovereign, the people (AM No. 90-11-2697-CA, June 29, 1992). The government under Gloria Macapagal Arroyo, was a de jure government (Estrada vs. Desierto, GR No. 1467-10-15, March 2, 2001).

b. De facto – actually exercises power or

control but without legal title (Lawyers League vs. Aquino, GR No. 73748, May 22, 1986).

i. De facto proper – government that gets

possession and control of, or usurps, by force or by the voice of the majority, the rightful legal government and maintains itself against the will of the latter.

ii. De facto gov’t of paramount force – established and maintained by military forces that invade and occupy a territory of the enemy in the course of war.

iii. Independent gov’t – established by the inhabitants of the country who rise in insurrection against the parent state (Ko Kim Chan vs. Valdez Tan Keh, No L-5, Sept. 17, 1945)

B. As to concentration of powers in a

governmental branch Presidential vs. Parliamentary In presidential government, there is separation of powers between the executive and legislative departments. In parliamentary, there is fusion of both executive and legislative powers in Parliament, although the actual exercise of executive powers is vested in a Prime Minister who is chosen by and accountable to the Parliament.

C. As to centralization of control a. Unitary government – the control of

national and local affairs is exercised by the central or national government,

exercising powers over both the internal and external affairs.

b. Federal government – the powers of the government are divided between two sets of organs, one for the national affairs and the others for local affairs, each organ being supreme within its own sphere. Consists of autonomous LGUs merged into a single State, with the national gov’t exercising a limited degree of power over domestic affairs but generally full discretion of the external affairs.

Effect of Revolutionary Government A revolutionary government is bound by no constitution. However, the revolutionary gov’t did not repudiate the Covenant or the Declaration in the same way it repudiated the Constitution. It cannot escape responsibility of compliance of the international obligations in good faith. Thus, although no Bill of Rights existed in the interregnum, the state is still bound by the international covenant on human rights (political and civil) [Republic vs. Sandiganbayan, GR No. 104768, July 21, 2003).

4. Sovereignty – the supreme and uncontrollable

power inherent in a State by which the State is governed. Kinds:

a. Legal – the power to issue commands. b. Political – the sum total of all the

influences which lie behind the law. c. Internal – the supreme power over

everything within its territory. d. External - freedom from external control

Characteristics:

1) Permanent 2) Exclusive 3) Comprehensive 4) Absolute 5) Indivisible 6) Inalienable 7) Imprescriptible

DOCTRINE OF AUTO-LIMITATION The adherence of the Philippines to principles of international law as a limitation to the exercise of its sovereignty. It means that any state may, by its consent, express or implied, submit to a restriction of its sovereign rights (Reagan vs. CIR, No. L-26379, Dec. 27, 1969)


MANIFESTATION OF SOVEREIGNTY - Jurisdiction

a. Territorial – authority to have all persons and things within its territorial limits be completely subject to its control.

b. Personal – authority over its nationals, their persons, property, or acts, whether within or outside the territory.

c. Extraterritorial – authority over persons, things, or acts, outside its territorial limits by reason of their effects to its territory.

IMPERIUM The state’s authority to govern as embraced in the concept of sovereignty; includes passing of laws, governing a territory, maintaining peace and order over it and defending it against foreign invasion. DOMINIUM Capacity of the state to own or acquire property EFFECT OF BELLIGERENT OCCUPATION No change in sovereignty. However, political laws, except those of treason are suspended. Municipal laws remain in force unless changed by the belligerent occupant. EFFECT OF CHANGE OF SOVEREIGNTY Political laws of the former sovereign, whether or not compatible with those of the new sovereign, are automatically abrogated, UNLESS they are expressly re-enacted by the affirmative act of the new sovereign (Macariola vs. Asuncion, AC No. 133-J, May 31, 1982). PRINCIPLE OF JUS POSTLIMINIUM At the end of the occupation, when the occupant is ousted from the territory, the political laws which had been suspended during the occupation shall automatically become effective again (Peralta vs. Director of Prisons, No. L-49, Nov. 12, 1945).

STATE IMMUNITY FROM SUIT

…………………………………………………

The State may not be sued without its consent (sec. 3, Art. XVI). Basis: There can be no legal right against the authority which makes the law on which the right depends (republic vs. Villasor, 54 SCRA 83). [aka Royal Prerogative of Dishonesty] – Called as because it grants the State [Crown] the prerogative to defeat any legitimate claim against it by simply invoking its non-suability.

Who may invoke: It may be invoked by the courts sua sponte – in its own initiative (P. vs. Cabero, 61 Phil. 125) and at any stage of the proceedings (Republic vs. IAC, 148 SCRA 424). Immunity is enjoyed by other States, consonant with the public international law principle of par in parem non habet imperium. The Head of State, who is deemed the personification of the state, is inviolable, and thus, enjoys immunity from suit. The State’s diplomatic agents, including consuls

to a certain extent are also exempt from the jurisdiction of local courts and administrative bodies. But when the agent is sued in his individual capacity, as when he acted in bad faith or malice or beyond the scope of his authority, the cloak of protection is removed (Minucher vs. CA, GR No. 142396, Feb. 11, 2003).

The UN, as well as its organs and specialized agencies, are likewise beyond the jurisdiction of our local courts.

Even other international organizations or

agencies may be granted diplomatic immunity (SEFDEC vs. NLRC, 241 SCRA 580).

The Tijam vs. Sibonghanoy ruling cannot apply

to parties which enjoy foreign and diplomatic immunity (SEAFDEC-Aquaculture vs. NLRC, 206 SCRA 283).

A categorical recognition of the Executive

Branch that IRRI enjoys immunities accorded to international organizations is a political question conclusive upon the courts in order not to embarrass a political department of the government (Callado Vs. IRRI, 244 SCRA 210).

Test to determine if suit is against the State: On the assumption that decision is rendered against the public officer or agency impleaded, will the enforcement thereof require an affirmative act from the State, such as the appropriation of the needed amount to satisfy the judgment? If so, then it is a suit against the State. SUIT AGAINST GOVERNMENT AGENCIES A. Incorporated – just look at the charter, if the

charter provides that it can sue and be sued, then suit will lie. Samples:

1) National Irrigation Administration; 2) Municipal Corporations; 3) Department of Agriculture (Act No.

3038)


B. Unincorporated – inquire into the principal

functions of the agency. 1) If governmental; NO suit without

consent. Samples:

a. Bureau of Printing; b. Bureau of Customs;

Note: even in the exercise of proprietary functions incidental to its primary governmental function, an unincorporated agency still cannot be sued without its consent (Bureau of Printing vs. BPEA, 1 SCRA 3400.

2) If proprietary; suit will lie. When the state engages in principally proprietary functions, then it descends to the level of a private individual (NAC vs. Teodoro, 91 Phil. 207)

SUIT AGAINST PUBLIC OFFICERS The doctrine of State immunity also applies to complaints filed against officials of the state for acts performed by them in the discharge of their functions/duties within the scope of their authority. When public officers may be sued without prior consent of the state (Sanders vs. Veridiano, 162 SCRA 88): a) To compel him to do an act required by law; b) To restrain him from enforcing an act claimed to

be unconstitutional; c) To compel the payment of damages from

already appropriated assurance fund; d) To refund tax over-payments from fund already

available for the purpose; e) When the judgment will not require any

affirmative act on the part of the State [sued in his personal capacity];

f) Where the government itself has violated its own laws;

The unauthorized acts of government officials

are not acts of the state, thus the public officer may be sued and held personally liable in damages.

Where the public officer committed an ultra vires act, or where there is showing of bad faith, malice or gross negligence, the officer can be held personally accountable even if such acts are claimed to have been performed in connection with official duties (Wylie vs. Rarang, 209 SCRA 357).

NEED FOR CONSENT In order that suit may lie against the State, there must be consent, either express or implied.

A. Express Consent – express consent may be

given by the act of Congress in a general or a special law. a. General Law like CA 327, as amended

which requires that all money claims against the government must first be filed with the COA.

But in Amigable vs. Cuenca, 43, SCRA 360, an action for recovery of the value of the property taken by the government was allowed despite failure of the owner to file his claim with the COA. The state immunity from suit cannot be used to perpetrate an injustice.

An action for revocation of donation for failure of the defendant to comply with the stipulated conditions was allowed. The action did not involve a money claim (Santiago vs. Republic, 87 SCRA 294).

b. Special law – this form of consent must be

embodied in a statute and cannot be given by a mere counsel (Republic vs. Purisima, 78 SCRA 470).

PD 1620 – Immunity of IRRI may be waived by its Director General.

B. Implied Consent

a. When the state commences a litigation, it becomes vulnerable to a counterclaim (Froilan vs. Pan Oriental Shipping, GR No. L-6060, Sept. 30, 1950).

Intervention of the State would

constitute commencement of litigation if the State asks for affirmative reliefs other than resisting the claims against it (Lim vs. Brownell, 107 Phil. 345).

b. When the State enters into a business

contract. Thus, contract bidded out for barbershop facilities in Clark Field US Air Force was deemed commercial (US vs. Guinto, 182 SCRA 644).

But when the contract is in pursuit of a

sovereign activity [construction of wharves for national defense], there is no waiver of immunity (US vs. Ruiz, 136 SCRA 487). i. Contracts entered into for the

maintenance of a Diplomatic mission for the upkeep of air conditioning units, generator sets, etc., in the embassy is a governmental contract (Republic


of Indonesia vs. Vinzon, GR No. 154705, June 26, 2003). A provision in the contract containing a statement that all legal controversies shall be settled according to Philippine laws does not necessarily mean waiver of immunity.

ii. The exercise of the power of eminent domain is an act juri emperii but without prejudice to Amigable vs. Cuenca.

MEANING OF CONSENT TO BE SUED Consent to be sued only means that the complainant/petitioner is given the chance to prove his claim against the State. Consent to be sued does not mean automatic concession of liability by the State. The liability of the State must have to be determined according to the law and the evidence. SCOPE OF CONSENT Consent to be sued does not include consent to the execution of judgment. Such execution will require another waiver. Government funds may not be seized under writs of execution or garnishment, unless such disbursement is covered by the corresponding appropriation as required by law (Republic vs. Villasor, 54 SCRA 84).

But funds belonging to government corporations, whose charters provide that they can sue and be sued, that are deposited with a bank are not exempt from garnishment (PNB vs. Pabalan, 83 SCRA 595).

But funds of a municipality are public character and may not be garnished unless there is a corresponding appropriation ordinance (Municipality of San Miguel, Bulacan vs. Fernandez)

But funds deposited in a bank already

appropriated for the claim of the plaintiff may

be garnished (City of Caloocan vs. Allarde,

GR No. 107271, Sept. 10, 2003.

A judgment against the State, when it consents to be sued, implies that the legislature will recognize the judgment as final and make provision for its satisfaction. (Philippine Rock Industries, Inc. vs. Board of Liquidators, 180 SCRA 171).

Where the municipality fails without justifiable reason, to effect payment of a final money judgment rendered against it, the claimant may avail of the remedy of mandamus in order to compel the enactment of corresponding

disbursement of municipal funds (Municipality of Makati vs. CA, 190 SCRA 206).

FUNDAMENTAL POWERS OF THE STATE

…………………………………………………

Inherent Powers of the State:

1. Police Power 2. Power of Eminent Domain 3. Power to Tax

Similarities:

1. Inherent in the State, exercised even without need of express constitutional grant;

2. Necessary and indispensable; State cannot be effective without them;

3. Enduring and indestructible as the State itself;

4. Methods by which State interferes with private property;

5. Presupposes equivalent compensation; and 6. Exercised primarily by the legislature.

Police Power Eminent Domain

Taxation

Regulates both liberty and property

Affects only property rights

Exercised only by the

government

May be exercised by

private entities

Exercised only by the

government

Public necessity and the right of the State and of the public to

self-preservation

and self-protection

Necessity of the public for

the use of property

Public necessity;

lifeblood theory

Property is noxious or

intended for noxious

purpose and as such is taken and destroyed

Property is wholesome and is devoted to public use or purpose

Compensation is the

intangible, altruistic feeling

that the individual has contributed to

the public good

Compensation is the full and fair equivalent of the property

taken

Compensation is the

protection and public

improvements instituted by

the government for the taxes

paid


Delegation of Powers

Police Power Eminent Domain

Power of Taxation

Generally exercised by the legislature

May be exercised, upon valid delegation, by:

1. President; 2. Administrativ

e Bodies; 3. Law-making

Bodies of LGUs


1. President; 2. Law-making

bodies of LGUs;

3. Public corporations;

4. Quasi public corporations;

5. Administrative bodies


1. President; 2. Law-making

bodies of LGUs;

3. Public corporations

4. Quasi public corporations;

5. Administrative bodies

1. POLICE POWER

The power of promoting public welfare by restraining and regulating the use of liberty and property. [The law of overruling necessity] Basis: Public necessity and the right of the state and the public to self-protection and self-preservation. Characteristics/scope: Police power is the most pervasive, least limitable, and most demanding of the three powers. The justification is found in the maxims –

a. Salus populi est suprema lex; b. Sic utere tuo ut alienum non laedas.

It cannot be bargained away through the

medium of a treaty or a contract (Ichong vs. Hernandez, 101 Phil. 1155).

Taxing power may be used as an implement of police power (Lutz vs. Araneta, 98 Phil. 148).

Eminent domain may be used as an implement to attain police objective (ASLP vs. Sec. of Agrarian, 175 SCRA 343 [1989]).

Non-impairment contracts or vested rights clauses will have to yield to the superior and legitimate exercise of police power (Ortigas and Co. vs. CA, GR No. 126102, Dec. 4, 2000).

Freedom to choose a particular course or profession is subject to reasonable and equitable admission and academic requirements (PRC vs. de Guzman, GR No. 144681, June 21, 2004).

LIMITATIONS (Tests for Valid Exercise): a) Lawful Subject – the interests of the public

in general, as distinguished from those of a particular class, require the exercise of the power. The activity or property sought to be regulated must affect general welfare. The ordinary requirements of procedural due process yield to the necessities of protecting vital public interests through the exercise of police power. Thus, the Pollution Adjudication Board is permitted by law and regulations to issue ex parte cease and desist orders (PAD vs. CA, 195 SCRA 112).

b) Lawful Means – the means employed are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive on individuals.

Note: Both must concur (Ynot vs. IAC, GR No. 74457, March 20, 1987)

Requisites of Exercise of Police Power by a Delegate:

1. Express grant by law; 2. Within the territorial limits, for LGUs, except

for the protection of water supply; 3. Must not be contrary to law.

Prohibited activity may not be allowed in

guise of regulation; and activity allowed may be regulated but not prohibited.

Requisites for a valid municipal ordinance: (Magtajas vs. Pryce, GR No. 111097, March 11, 1992)

a) Must not contravene the Constitution or any statute;

b) Must not be unfair or oppressive; c) Must not be partial or discriminatory; d) Must not prohibit, but may regulate

trade; e) Must not be unreasonable; f) Must be general in application and

consistent with public policy. Administrative Power is different from Police Power: MMDA’s powers were limited to the formulation, coordination, regulation, implementation, preparation, management, monitoring, setting policies, installing a system, and administration. It is not granted police power (MMDA vs. Trackworks, GR No. 179554, Dec. 16, 2009).


2. POWER OF EMINENT DOMAIN [aka Power of Expropriation] It is the power of the State to forcibly take private property for public use upon payment of just compensation. Basis: necessity of the property for public use. Characteristics:

a. Inherent – no need of constitutional grant; but the Constitution only imposes limitations

b. Eminent domain prevails over ejectment suit (Republic vs. Tagle, GR No. 129079, Dec. 2, 1998).

c. Jurisdiction is with the RTC. The primary issue to resolve is the right to expropriate. Determination of value of the property is merely incidental [secondary] (Barangay San Roque vs. Heirs of Francisco Pastor, GR No. 138896, June 20, 2000)

d. Exercised by Congress, and by delegation to the President, administrative bodies, LGUs and private enterprises performing public services.

Requisites: a) Necessity – the necessity must be genuine and

of public character. When exercised by: a) Congress – generally a political

question b) Delegate –

I. Grant of special authority for special purpose is a political question.

II. Grant of general authority is a justiciable question (City of Manila vs. Chinese Community of Manila, GR No. L-14355, Oct. 31, 1919).

Note: the issue of necessity of the expropriation is a matter properly addressed to the RTC. The RTC has the power to inquire into the legality of the exercise of the right.

Government may not capriciously or arbitrarily choose which private property should be expropriated (Lagcao vs. Judge Labra, GR No. 155746, Oct. 13, 2004).

b) Private property – generally, all property

capable of ownership may be expropriated; may include public utility [service] (Republic vs. PLDT, L-18841, Jan. 27, 1969).

Exceptions: Money and choses in action. Expropriation of money would be a futile act because of the requirement for the payment of just compensation, usually also in money. The rule, however, applies only to legal tender, and not to foreign currencies and local currencies which are no longer in circulation. “Chose in action”: Any claim that can be pleaded in law or equity.

Public property (cemetery) is also a proper subject of expropriation (City of Manila vs. Chinese Community of Manila, supra).

Private property already devoted to public cannot be expropriated by a delegate of the legislature acting under a general grant of authority (City of Manila vs. Chinese Community, 40 Phil. 349).

c) Taking in the constitutional sense –

imports a physical dispossession of the owner. However, in law, the term has broader connotation as it may include trespass without actual eviction of the owner, material impairment of the value of the property or prevention [easements and servitudes] of the ordinary uses for which the property was intended (Cruz, 2007). Requisites for Taking (Republic vs. Castelvi, L-28620, Aug 15, 1974):

a. The expropriator must enter a private property;

b. Entry must be for more than a momentary period;

c. Entry must be under warrant or color of authority;

d. Property must be devoted to public use or otherwise informally appropriated or injuriously affected;

e. Utilization of the property must be in such a way as to oust the owner and deprive him of beneficial enjoyment of the property.

A property need not be wholly taken, as

partial expropriation may be allowed according to the need of the government. Physical dispossession is not also required for a burden may only be imposed.

d) Public use – the general concept of

meeting public need of public exigency. The


term ―public use‖ has now been held to be synonymous with public interest, public benefit, public welfare and public convenience (Reyes vs. NHA, GR No. 147511, Jan. 20, 2003).

The meaning of public use has also been broadened to cover uses which, while not directly available to the public, redound to their indirect advantage or benefit (Heirs of Ardona vs. Reyes, 125, SCRA 220).

The fact that only few could actually benefit from the expropriation does not necessarily diminish the essence and character of public use (Manosca vs. CA, 252 SCRA 412).

When exercised by LGUs, it is for public use, or purpose, or welfare, for the benefit of the poor and the landless.

e) Just compensation (JC) – the full and fair

equivalent of the property taken; it is the fair market value (FMV) of the property. The sum of money which a person, desirous but not compelled to buy, and an owner, willing but not compelled to sell, would agree on as a price of the property.

Computation:

JC = [FMV + (CD – CB)] But consequential benefits shall not exceed consequential damages in which case, the value of the property will only be the fair market value (NPC vs. Chiong, GR NO. 152436, June 20, 2003).

Just compensation means not only correct amount but also payment within a reasonable time after its taking (Eslaban vs. De Onorio, GR No. 146062, June 28, 2001).

Judicial Prerogative: The ascertainment of

what constitutes just compensation is a judicial prerogative, and a law which fixes the amount of just compensation is unconstitutional (EPZA vs. Dulay, 148 SCRA 305).

A law (PD 1670) which authorizes the City Assessor to fix the value of the property is also unconstitutional (Belen vs. CA, 227 SCRA 401).

Appointment of Commissioners: while Commissioners are to be appointed by the court, the latter is not bound by their findings (Republic vs. Santos, 141 SCRA 30).

But where the principal issue is the determination of just compensation, trial before commissioners is indispensable (Manila Electric vs. Penida, 206 SCRA 196.

Form of Compensation:

GR: payment only in money. Exception: In agrarian reform cases, payment may be partly in bonds. Under CARP, we are dealing with revolutionary kind of expropriation (Ass. of Small Landowners vs. Sec. of Agrarian Reform, 175 SCRA 343).

Note: ―Land Bank bonds‖ does not include trust accounts (Land Bank vs. CA, 249SCRA 149).

Reckoning point of valuation:

Compensation is determined as of the date of the filing of the complaint for expropriation. But where the filing of the complaint occurs after the actual taking, just compensation is determined as of the date of the taking (NPC vs. CA, 254 SCRA 577).

Thus, it was held that the value of the property must be determined either as of the date of the taking or the filing of the complaint, whichever comes first (Eslaban vs. De Onorio, supra).

But when exercised by LGUs, just compensation is based on the FMV at the time of the taking (Sec. 19, RA 7160).

Criterion of valuation:

The character of the land at the time of the taking (NPC vs. Henson, GR No. 129998, Dec. 29, 1998).

Entitlement to interest: When there is delay in the payment of JC, the owner is entitled to interest (6% per annum), IF claimed; otherwise, it is deemed waived (Urtula vs. Republic, 22 SCRA 477).

A 12% interest per annum is in some cases awarded as a form of damages for the delay in payment (Wycoco vs. Caspillo, GR No. 146,733, Jan 13, 2004).


Persons entitled to compensation: The owner and includes all those who have lawful interest in the property condemned, including a mortgagee, a lessee, and a vendee in possession under an executory contract (Knecht vs. CA, GR No. 108015, May 20, 1998).

Note: Right to Claim Just Compensation Does Not Prescribe: Where the private property is taken for public use without first acquiring title thereto either through expropriation or negotiated sale, the owner’s action to recover the land or the value thereof does not prescribe (NPC vs. Campos, Jr. GR No. 143643, June 27, 2003).

Title to property:

GR: Title does not pass until after payment (Visayan Refining vs. Camus, 40 Phil. 550). Exception: In agrarian cases (Land Bank vs. CA, 258 SCRA 404). Thus:

Owner of the land may still dispose the land before payment (Republic vs. Salem Investment Corp., GR No. 137569, June 23, 2000).

Taxes paid on the property expropriated by the owner after the taking, are reimbursable (City of Manila vs. Roxas, 60 Phil. 215).

As a rule, non-payment of JC does not entitle the owners to recover possession, but only to demand payment of the FMV of the property [Inverse Condemnation Proceedings] (Republic vs. CA, GR No. 146587, July 2, 2002). However, where the government failed to pay JC within 5 years from finality of the judgment, the owners concerned shall have the right to recover possession of their property (Republic vs. Lim, GR No. 161656, June 29, 2005).

2 Stages of Eminent Domain Cases: i. Determination of the authority of the plaintiff

to exercise the power and the propriety of its exercise in the context of the facts of the case;

ii. Determination of just compensation by the court.

Note: Even if the property owner failed to appear [to file an answer] on the initial stage, he may still participate in the next stage, the trial for the determination of the just compensation. Remember

the effects of failure to file an answer. The party will be declared in default and may not participate in the trial of the case. Therefor, such rule, in Civil Procedure does not apply in expropriation cases. NOTE: In expropriation cases, there is NO such thing as the plaintiff’s ―matter of right‖ to dismiss the complaint. The landowner may have already suffered damages at the start of the taking (NPC vs. CA, GR No. 106804, Aug. 12, 2004).

WRIT OF POSSESSION Becomes ministerial duty of the court upon

a) Filing of the complaint sufficient on form and substance; and

b) Deposit made by the government of the amount equivalent to 15% of the FMV of the property per current tax declaration.

Note: When the national government expropriates private property, the implementing agency may enter into the possession of the property through a writ of possession upon the filing of the complaint as long as it makes immediate payment to the property owner the amount equivalent to 100% of the value of the property and the value of the improvements, based on the relevant BIR zonal valuation (sec. 4, RA 8974).

This provision modifies section 2, Rule 67, ROC as it is not enough to make initial deposit of an amount equivalent to the assessed value of the property (Republic vs. Gingoyon, GR No. 166429, Dec. 19, 2005).

However, under the LGC, sec. 19 [last part] –

That the local government unit may immediately take possession of the property upon the filing of the expropriation proceedings and upon making a deposit with the proper court of at least fifteen percent (15%) of the fair market value of the property based on the current tax declaration of the property to be expropriated: Provided, finally, That, the amount to be paid for the expropriated property shall be determined by the proper court, based on the fair market value at the time of the taking of the property. Right to Repurchase or Re-acquire the Property: It depends upon title acquired by the expropriator. Where the property is expropriated for a particular purpose with the condition that when the purpose is abandoned or ended, the property shall revert to the former owner, then the former owner can re-acquire the property (MCIAA vs. CA, GR No. 139495, Nov. 27, 2000)


Once the purpose is terminated or peremptorily abandoned, the former owner, if he so desires, may seek its reversion, subject of course to the return, at the very least, of the just compensation received (Vda. De Ouano vs. Republic, GR No. 168770, Feb. 9, 2011). Effect of Abandonment of Intended Use More Particularly with respect to the element of public use, the expropriator should commit to use the property pursuant to the purpose stated in the petition filed, failing which, it should file another petition for the new purpose. If not, then it is then incumbent upon the expropriator to return the said property, if the owner desires to reacquire the same. Otherwise, the judgment of expropriation suffers an intrinsic flaw, as it would lack one indispensable element, namely, the particular public purpose for which the property will be devoted. Accordingly, the owner would be denied due process of law, and the judgment would violate the owner’s right to justice, fairness and equity (MCIAA vs. Lozada, Sr., GR No. 176625, Feb. 25, 2010). NOTE: Insert pertinent provisions of RA 7279.

3. THE POWER OF TAXATION

It is the power by which the sovereign, through its law-making body, raises revenue to defray the necessary expenses of government. It is a way of apportioning the costs of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens. Scope: Covers persons, property or occupation to be taxed within the taxing jurisdiction. Rationale: Taxes are what we pay for civilized society. Without it, the government would be paralyzed for lack of motive power to activate and operate it. Hence, despite the natural reluctance to surrender part of one’s hard-earned income, every person who is able must contribute his share in the running of the government. In return, the government is expected to respond in the form of tangible and intangible benefits intended to improve the lives of the people (CIR vs. Algue, GR No. L-28896, Feb. 17, 1988). LIMITATIONS: A. Inherent Limitations – 1. Public purpose; 2. Non-delegability of the power; 3. Territoriality or situs of taxation; 4. Exemption of government; 5. International comity.

B. Constitutional Limitations - 1. Due process of law - tax should not be

confiscatory; 2. Equal protection clause; 3. Public purpose – tax for special purpose,

treated as a special fund and paid for such purpose only; when such purpose is fulfilled, the balance, if any shall be transferred to the general funds;

4. Double taxation – additional taxes are laid on the same subject by the same taxing authority during the same taxing period and for the same purpose;

Despite absence of specific constitutional prohibition, double taxation will not be allowed if the same will result in a violation of the equal protection clause.

5. Tax exemptions;

Where the tax exemption is granted gratuitously, it may be revoked at will; but not if granted for a valuable consideration (MCIAA vs. Marcos, 261 SCRA 667)

Majority votes of ALL the members of Congress required in granting tax exemptions.

6. Non-imprisonment for non-payment of poll tax; 7. ART bills originating in the House of

Representatives; 8. Non-impairment of contracts; 9. Non-impairment of SC jurisdiction over tax

cases

TAX LICENSE FEE

To raise revenue – revenue measure

To regulate – a police measure

Rate or amount to be collected is unlimited

provided not confiscatory

Amount is limited to cost of issuing the license

and the necessary inspection or police surveillance, except

when imposed on non-useful occupations

Imposed on persons or property

Paid for privileged of doing something but the

privilege is revocable

In case of non-payment, business or activity does

not become illegal

In case of non-payment, business becomes

illegal


1987 CONSTITUTION OF THE REPUBLIC OF THE

PHILIPPINES

Effectivity: Feb. 2, 1987, the date of its ratification in the plebiscite and not the date of proclamation of its ratification (De Leon vs. Esguerra, No. L-78059, Aug 31, 1987).

PREAMBLE

We, the sovereign Filipino people, imploring

the aid of Almighty God, in order to build a

just and humane society, and establish a

Government that shall embody our ideals and

aspirations, promote the common good,

conserve and develop our patrimony, and

secure to ourselves and our posterity, the

blessings of independence and democracy

under the rule of law and a regime of truth,

justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.

NOTE: The preamble does not confer rights nor impose duties. Purposes:

a. Indicates authorship; b. Enumerates the primary aims and

aspirations of the framers; and c. Serves as an aid in the construction of the

Constitution.

ARTICLE I

NATIONAL TERRITORY

The national territory comprises the Philippine

archipelago, with all the islands and waters

embraced therein, and all other territories

over which the Philippines has sovereignty or

jurisdiction, consisting of its terrestrial, fluvial

and aerial domains, including its territorial

sea, the seabed, the subsoil, the insular

shelves, and other submarine areas. The

waters around, between, and connecting the

islands of the archipelago, regardless of their

breadth and dimensions, form part of the internal waters of the Philippines.

Note on: RA 3046 and RA 5446. COMPONENTS:

a. Terrestrial b. Fluvial c. Maritime

d. Aerial domains 1. Philippine Archipelago comprises:

1. Territories ceded by Spain to the US under the Treaty of Paris, December 10, 1898;

2. Cagayan, Sulu and Sibuto under the Treaty in Washington by Spain and US on November 7, 1900;

3. Turtle and Mangsee Islands under the US and Great Britain on January 2, 1930.

2. Other Territories:

1. Batanes (1935 Constitution); 2. By historic title (Art. I, 1973

Constitution); 3. PD 1956 (June 11, 1978).

ARCHIPELAGO DOCTRINE The waters around, between and connecting the islands of the archipelago, regardless of their breath and dimensions, form part of the internal waters of the Philippines. STRAITH BASELINE METHOD Imaginary straight lines are drawn joining the outermost points of the outermost islands of the archipelago; provided that the drawing of baselines shall not depart, to any appreciable extent, from the general configuration of the archipelago. The waters within the baselines shall be considered internal waters. UN Convention of the Law of the Sea (April 30, 1982)

a. Territorial Sea – 12 nautical miles from baselines.

b. Contiguous Zone – 12 nautical miles from the outer limits of the territorial sea.

c. Exclusive Economic Zone – 200 nautical miles from baselines.

ARTICLE II

DECLARATION OF PRINCIPLES AND STATE POLICIES PRINCIPLES

Section 1. The Philippines is a democratic

and republican State. Sovereignty resides in

the people and all government authority emanates from them.

ESSENTIAL FEATURES: [of Republicanism] 1. Representation; and 2. Renovation.

MANIFESTATIONS:

1. Government of laws and not of men;


2. Rule of majority (plurality in elections); 3. Accountability of public officials; 4. Bill of rights; 5. Legislature cannot pass irrepealable laws; 6. Separation of powers.

Purpose of Separation of Powers To prevent concentration of authority in one person or group of persons that might an irreversible error or abuse in its exercise to the detriment of republican institutions. To secure action, to forestall over-action, to prevent despotism and obtain efficiency.

It is not independence BUT interdependence.

Samples: Let the development of the mining industry

be the responsibility of the political branches of the government. The court restrained itself from intruding into the policy matters of the President (La Bugal-B’laan Tribal Ass. vs. Ramos, GR No. 127882, Dec. 1, 2004).

The investigation conducted by the Ombudsman encroaches into the SC’s power of administrative supervision over all courts and its personnel (Maceda vs. Vasquez, 221 SCRA 464).

PRINCIPLE OF BLENDING OF POWERS Instances when powers are not confined exclusively within one department but are assigned to or shared by several departments. Sample:

The President submits the proposed annual budget to Congress in the enactment of the general appropriations law.

PRINCIPLE OF CHECKS AND BALANCES This allows one department to resist encroachments upon its prerogatives or to rectify mistakes or excesses committed by the other departments. Samples:

Veto power of the President, and local Executives of LGUs;

Impeachment power; Expanded concept of judicial review.

SUPREMACY OF THE CONSTITUTION When the court mediates to allocate constitutional boundaries or invalidates the acts of a coordinate body, what it upholds is not its own superiority but the supremacy of the constitution (Angara vs. Electoral Commission, 63 Phil. 139). CRITERION FOR THE EXERCISE OF POWER

a. Express conferment; b. Doctrine of necessary implication; c. Inherent and incidental powers; d. Residual powers (of the President).

JUSTICIABLE QUESTION A purely justiciable question implies a given right; legally demandable and enforceable, an act or omission violative of such right, and a remedy granted and sanctioned by law for such breach of right (Casibang vs. Aquino, 92 SCRA 642). It is a definite and concrete dispute touching on the legal relations of parties having adverse legal interests which may be resolved by a court of law through the application of a law (Cutaran vs. DENR, GR No. 134958, Jan. 31, 2001). Requirements for Justiciability: 1. That there be actual controversy between or

among the parties to the dispute; 2. That the interest of the parties be adverse; 3. That the matter in controversy be capable of

being adjudicated by judicial power; 4. That the determination of the controversy will

result in practical relief to the complainant (Nachura, Separate Opinion, De Castro vs. JBC, supra).

POLITICAL QUESTION It means, in ordinary parlance, namely a question of policy. It is concerned with issues dependent on wisdom, not legality, of a given measure. It refers to either –

a. Under the Constitution, are to be decided by the people in their sovereign capacity; or

b. In regard to which, full discretionary authority has been delegated to the executive or legislative branch of the government.

DELEGATION OF POWERS The Rule is that what has been delegated cannot be re-delegated (Potestas delegata non potest delegare). The delegated power constitutes not only a right but a duty to be performed by the delegate through the instrumentality of his own judgment and not thorough the intervening mind of another. PREMISSIBLE DELEGATION [PETAL] 1. Tariff power to the president under the ―flexible

tariff clause‖. (sec. 28 [2], Art. VI); 2. Emergency powers to the President (sec. 23 [2],

Art. VI); 3. Delegation to the People (sec. 32, Art. VI);

NOTE: See RA 6735.


4. Delegation to LGUs (RA 7160); 5. Delegation to Administrative bodies [aka ―the

power of subordinate legislation]. TESTS FOR VALID DELEGATION 1. Completeness Test

The law must be complete when it leaves the legislature so that there will be nothing left on the delegate except to enforce it.

2. Sufficient Standard Test.

A standard that is to map out the boundaries of the delegate’s authority by defining the legislative policy and indicating the circumstances under which it is to be pursued and effected. The stand-by authority granted to the President to increase the VAT rate for 10% to 12% is not an undue delegation of legislative power. It is simply delegation of ascertainment of facts upon which enforcement and administration of the increase rate under the law is contingent (Abakada Guro vs. Executive Sec., GR No. 168056, Sept 1, 2005). The indeterminate period of imprisonment prescribed as a penalty in sec. 32, RA 4670, Magna Carta for Public School Teachers constitutes undue delegation of legislative power and violates the sufficient standard test (P. vs. Dacuycuy, 173 SCRA 90).

Section 2. The Philippines renounces war as

an instrument of national policy, adopts the

generally accepted principles of international

law as part of the law of the land and adheres

to the policy of peace, equality, justice,

freedom, cooperation, and amity with all nations.

Two Ways of Making IL Part of the Philippine Law: a. DOCTRINE OF INCORPORATION By virtue of this clause, our courts have applied the rules of international law in a number of cases even if such rules had not been previously been subject of statutory enactments, because these GAPIL are deemed automatically part of the law of the land (Kuroda vs. Jalandoni, 42 OG 4282). b. DOCTRINE OF TRANSFORMATION Requires the enactment by the legislative body of such international law principles as are sought to be part of municipal law. (sample – RA 9851, punishing Genocide, War Crimes, and Crimes against Humanity).

RULES IN CASE OF CONFLICT BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW A. International Court/Body deciding –

International Law should prevail.

B. Domestic Court deciding – efforts should first be exerted to harmonize the seemingly conflicting laws. As a rule, municipal law prevails. Ratio: Police power cannot be bargained away through a medium of a treaty or contract (Ichong vs. Hernandez, 101 Phil. 115. Above is, however, subject to the following modifications – (Review Lecture)

a) Conflict between Constitution and jus cogens norm – jus cogens prevails. No derogation is allowed.

b) Conflict between Constitution and jus dispositivum - Constitution prevails.

c) Conflict between Constitution and Treaty based on jus dispositivum – Constitution prevails.

d) Statute and Norm of International law – i. Statue vs. jus cogens norm –

jus cogens prevails. ii. Statute vs. jus dispositivum –

apply the rule on lex posterior derogat priori and the general and special law rule. That is, the later law governs and that special law prevails over general law dealing on the same subject matter.

Section 3. Civilian authority is, at all times,

supreme over the military. The Armed Forces

of the Philippines is the protector of the

people and the State. Its goal is to secure the

sovereignty of the State and the integrity of the national territory.

Note: Civilian supremacy is ensured by the following provisions:

a) Installation of the President (a civilian) as the Commander-in-Chief of the AFP (sec. 18, Art. VII); and

b) Requiring the members of the AFP to swear to uphold and defend the Constitution (sec. 5 [1], Art. XVI).

Section 4. The prime duty of the

Government is to serve and protect the

people. The Government may call upon the

people to defend the State and, in the

fulfillment thereof, all citizens may be

required, under conditions provided by law, to render personal, military or civil service.


Note: To leave the organization of an army to the will of the citizens would be to make this duty of the Government excusable should there be no sufficient men who would volunteer to enlist therein (P. vs. Lagman, 66 Phil. 13, [1938]).

Section 5. The maintenance of peace and

order, the protection of life, liberty, and

property, and promotion of the general

welfare are essential for the enjoyment by all the people of the blessings of democracy.

THE RIGHT TO BEAR ARMS The right to bear arms is a statutory, not a constitutional right. It is neither a property nor property right. It is within the ambit of the police power of the State (Chavez vs. Romulo, GR No. 157036, June 9, 2004). COMMENT: However, under the 2

nd Amendment

(Bill of Rights, US Constitution), ―the right of the people to keep and bear arms shall not be infringed‖.

Section 6. The separation of Church and

State shall be inviolable.

Note: The following provision is reinforced by: a) Freedom of religion clause (sec. 5, Art. III); b) Non-registration of religious sect as political

party (sec. 2 [5], Art. IX-C); c) No religious sectoral representative (sec. 5

[2], Art. VI); d) No appropriation for sectarian benefit (sec.

29 [2], Art. VI). Exceptions:

a) Exemption from taxation (sec. 28 [3], Art. VI);

b) Allowing appropriation for priest, etc. assigned to the AF or to any penal institution or government orphanage or leprosarium (sec. 29 [2], Art. VI);

c) Optional religious instruction for public elementary and high school students (sec. 3 [3], Art. XIV);

d) Educational institutions established by religious groups and mission boards (sec. 4 [2], Art. XIV).

STATE POLICIES

Section 7. The State shall pursue an

independent foreign policy. In its relations

with other states, the paramount

consideration shall be national sovereignty,

territorial integrity, national interest, and the right to self-determination.

Section 8. The Philippines, consistent with

the national interest, adopts and pursues a

policy of freedom from nuclear weapons in its territory.

Section 9. The State shall promote a just

and dynamic social order that will ensure the

prosperity and independence of the nation

and free the people from poverty through

policies that provide adequate social services,

promote full employment, a rising standard of living, and an improved quality of life for all.

Section 10. The State shall promote social justice in all phases of national development.

Section 11. The State values the dignity of

every human person and guarantees full

respect for human rights.

Note: The right to security of person is corollary of the policy of the State to guarantee full respect for human rights. As the government is the chief guarantor of order and security, the Constitutional guarantee of rights to life, liberty, and security of persons is rendered ineffective if government does not afford protection to these rights especially when they are under threat (Razon vs. Tagtiis, GR No. 182498, Dec. 3, 2009).

Section 12. The State recognizes the

sanctity of family life and shall protect and

strengthen the family as a basic autonomous

social institution. It shall equally protect the

life of the mother and the life of the unborn

from conception. The natural and primary

right and duty of parents in the rearing of the

youth for civic efficiency and the development

of moral character shall receive the support of the Government.

Section 13. The State recognizes the vital

role of the youth in nation-building and shall

promote and protect their physical, moral,

spiritual, intellectual, and social well-being. It

shall inculcate in the youth patriotism and

nationalism, and encourage their involvement

in public and civic affairs.

Note: RA 7610 which penalizes child prostitution and other sexual abuse was enacted in consonance with the policy of the State to provide special


protection to children to all forms of abuses (P. vs. Larin, GR No. 128777, Oct. 7, 1998).

Section 14. The State recognizes the role of

women in nation-building, and shall ensure

the fundamental equality before the law of women and men.

NOTE: While a requirement that a woman employee must remain unmarried may be justified as a ―bona fide occupational qualification‖ where the particular requirements of the job would require the same, discrimination against married women cannot be adopted as a general principle (Phil. Telegraph vs. NLRC, GR No. 118978, May, 23, 1997).

Section 15. The State shall protect and

promote the right to health of the people and instill health consciousness among them.


advance the right of the people to a balanced

and healthful ecology in accord with the rhythm and harmony of nature.

NOTE: Minors, duly joined by their respective parents had a valid cause of action in questioning the continued grant of TLA (Oposa vs. Factoran, 224 SCRA 792).

Section 17. The State shall give priority to

education, science and technology, arts,

culture, and sports to foster patriotism and

nationalism, accelerate social progress, and

promote total human liberation and development.

Note: Sec. 5, Art. XIV, which provides for the highest budgetary priority to education, is merely directory; the hands of Congress cannot be so hamstrung as to deprive it of the power to respond to the imperatives of national interest and the other state objectives and policies (Guingona vs. Carague, 196 SCRA 221). The right of every citizen to select a profession or course of study is subject to fair, reasonable and equitable admission and academic requirements (PRC vs. De Guzman, GR No. 144681, June 21, 2004).

Section 18. The State affirms labor as a primary social economic force. It shall protect the rights of workers and promote their welfare.

EXTENT OF PROTECTION covers - a) OFWs b) Qualified disabled persons (Bernardo vs.

NLRC, GR No. 122917, July 12, 1999)

Section 19. The State shall develop a self-

reliant and independent national economy

effectively controlled by Filipinos.

Note: The policy does not necessarily rule out foreign competition, entry of foreign goods and services. It contemplates neither economic seclusion nor mendicancy in the international community (Tañada vs, Angara, 272 SCRA 18 [1997]).

Section 20. The State recognizes the

indispensable role of the private sector,

encourages private enterprise, and provides incentives to needed investments.

Note: Although the Constitution enshrines free enterprise as policy, it nevertheless reserves to the government the power to intervene whenever necessary for the promotion of general welfare (Ass. of Phil. Coconut Desiccators vs. PCA, GR No. 110526, Feb. 10, 1998).

Section 21. The State shall promote

comprehensive rural development and agrarian reform.

Section 22. The State recognizes and

promotes the rights of indigenous cultural

communities within the framework of national unity and development.

Section 23. The State shall encourage non-

governmental, community-based, or sectoral

organizations that promote the welfare of the nation.

Section 24. The State recognizes the vital

role of communication and information in nation-building.

Section 25. The State shall ensure the

autonomy of local governments.

NOTE: Autonomy under the Constitution simply means ―decentralization‖ and does not make the local governments sovereign within the State or an imperium in imperio (Basco vs. PAGCOR, 197 SCRA 52). Thus, the exercise of local autonomy remains subject to the power of control by Congress and the


power of general supervision by the President (Dadole vs. COA, GR No. 125350, Dec. 3, 2002).

Section 26. The State shall guarantee equal

access to opportunities for public service and

prohibit political dynasties as may be defined by law.

Note: This provision does not bestow a right to seek the presidency; it does not contain a judicially enforceable constitutional right and merely specifies a guideline for legislative action. The privileged may be subjected to limitations, one of which is on nuisance candidates under the Omnibus Election Code (Pamatong vs. COMELEC, GR No. 161872, April 13, 2004).

Section 27. The State shall maintain honesty

and integrity in the public service and take

positive and effective measures against graft and corruption.

Section 28. Subject to reasonable conditions

prescribed by law, the State adopts and

implements a policy of full public disclosure of all its transactions involving public interest.

ARTICLE III BILL OF RIGHTS

Definition: The set of prescriptions setting forth the fundamental civil and political rights of the individual, and imposing limitations on the powers of government as a means of securing the enjoyment of those rights. Generally, any governmental action in violation

of the Bill of Rights is void. These provisions are generally self-executing. The Bill of Rights affords protection against

possible State oppression against its citizens, but NOT against an unjust or repressive conduct by a private party towards another (Agabon vs. NLRC, GR No. 158693, Nov. 17, 2004, Separate Opinion of Justice Tinga).

Note: The fact that the Bill of Rights covers only protection from governmental intrusion does not necessarily mean private individuals can freely violate these constitutional guarantees. Its violation may properly give rise to criminal and civil liabilities (See art. 32, NCC)

CIVIL RIGHTS Those rights that belong to every citizen of the state or country, or in a wider sense, to all inhabitants, and are not connected with the organization or administration of the government. Among them-

a. Property; b. Marriage; c. Freedom of contract; d. Etc.

POLITICAL RIGHTS They refer to the right to participate, directly or indirectly, in the establishment or administration of government. Examples –

a. The right of suffrage; b. The right to hold public office; c. The right to petition the government.

Note: During the interregnum (the time of take-over after EDSA I up to the adoption of the Provisional Constitution), there was no Bill of Rights to speak of, but we remain bound by the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights (Republic vs. Sandiganbayan, GR No. 104768, July 21, 2003). Hierarchy of Rights

a. Primacy of human rights over property rights is recognized. Human rights are imprescriptible (Philippine Blooming Mills Employees Org. vs. Phil. Blooming Mills, No. L-31195, Feb. 18, 1985).

b. Free exercise of religious clause is superior to contract rights (Victoriano vs. Elizalde Rope Workers’ Union, L-25246, Sept. 12, 1974).

Section 1. No person shall be deprived of

life, liberty, or property without due process

of law, nor shall any person be denied the equal protection of the laws.

DUE PROCESS OF LAW

A law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. ORIGIN: The 39

th Chapter of the Magna Carta

wrung by the Barons from King John. EXTENT/SCOPE OF PROTECTION Universal in application without regard to any difference in race, color or nationality. Applies also to artificial persons in so far as their property is concerned. 1. Life; 2. Liberty; and; 3. Property.


Note: Public office is not a property right but nevertheless a protected right (Bince vs. COMELEC, 218 SCRA 782).

Mandatory suspension from public office

pending criminal prosecution for violation of RA 3019 is not deprivation of property without due process of law (Libanan vs. Sandiganbayan, 233 SCRA 163).

One’s employment, profession or trade or calling is a property right but is subject to reasonable regulation pursuant to the police power (Crespo vs. Provincial Board, 160 SCRA 66). A mining license, being a mere privilege, may be revoked, when public interest so requires (Republic vs. Rosemoor Mining, GR No. 149927, March 30, 2004).

Relativity of Due Process The concept of due process is flexible for not all situations calling for procedural safeguards call for the same procedure (Sec. of Justice vs. Lantion, GR No. 139465, Oct. 17, 2000).

ASPECTS OF DUE PROCESS a) Substantive – This serves as a restriction on

the government’s law and rule making powers. Requisites:

1. The interest of the public, in general, as distinguished from those of a particular class, require the intervention of the State [Lawful Subject];

2. The means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive on individuals [lawful means].

An ordinance requiring all laundry

establishments to issue receipts in English and Spanish was held valid (Kwong Sing vs. City of Manila, 41 Phil. 103).

But a law prohibiting traders from keeping their books accounts in a language other than English, Spanish or any local dialect was held unconstitutional (Yu Eng Cong vs. Trinidad, 271 US 500).

A provision which provides that the surviving spouse has no right to survivorship pension benefits if the surviving spouse contracted marriage with the pensioner within three years before the pensioner qualified for pension benefit [sec 18, PD 1146] was

declared invalid (GSIS vs. Montesclaros, 434 SCRA 41).

b) Procedural – This serves as a restriction on

actions of judicial and quasi-judicial agencies.

Requisites:

1. An impartial court/tribunal clothed with judicial power to hear and decide the matter before it.

The court cannot cross-examine the witnesses and the accused, in so doing, the accused was denied due process (Tabuena vs. Sandiganbayan, 268 SCRA 332).

HOWEVER, the court may ask some clarificatory questions when necessary for the orderly and expeditious presentation of evidence (P. vs. Herida, GR No. 127158, March 5, 2001).

The CSC is mandated to hear and decide administrative cases instituted by it or instituted before it directly or on appeal. Thus, there was no denial of due process when the CSC acted as investigator, complainant, prosecutor and judge (Cruz vs. CSC, GR No. 144464, Nov. 22, 2001).

The officer who reviews a case on appeal should not be the same person whose decision is under review (Tejano vs. Ombudsman, GR No. 159190, June 30, 2005).

2. Jurisdiction must be lawfully acquired over

the person of the defendant and over the property which is the subject matter of the proceeding.

Compliance with the rules regarding the service of summons is as much an issue of due process as of jurisdiction (Sarmiento vs. Raon, GR No. 121327, Dec. 20, 2001).

Please refer to Remedial Law Reviewer for the substantial discussion on jurisdiction over the person of the parties and of the res.

3. The defendant must be given an opportunity

to be heard.

If it is not availed of, it is deemed waived without violating the constitutional guarantee (Bautista vs. CA, GR No. 157219, May 28, 2004).


Unreasonable delay in the termination of the preliminary investigation by the Tanodbayan is violative of due process (Tatad vs. Sandiganbayan).

When the petitioner was not given the chance to present evidence, there is violation of due process, and the Arbitrator’s decision is null and void (Unicraft Industries vs. CA, GR No. 134309, March 26, 2001).

Not all cases require trial-type hearing. Submission of position papers may be enough [in administrative proceedings], Mariveles vs. CA, GR No. 144134, Nov. 11, 2003).

To be heard may also by means of pleadings and not merely verbal arguments in court (Torres vs. Gonzales, 152 SCRA 272).

The respondent is not entitled to notice and hearing during the evaluation stage of the extradition process. It is to accommodate the more compelling state Interest to prevent the escape of potential extraditee (Sec. of Justice vs. Judge Lantion, GR No. 139465, Oct. 17, 2000).

The right of a party to cross-examine the witness against him in civil cases is an indispensable part of due process.

The filing of a MR cures the defect of absence of a hearing (Chua vs. CA, 287 SCRA 33).

Some instances where notice and hearing may be dispensed with:

i. Cancellation of passport of a person sought in connection of a crime (Suntay vs. P., 101 Phil. 833);

ii. Preventive suspension of a public servant facing administrative charges (Co vs. Barbers, 290 SCRA 717);

iii. Destraint of property for tax delinquency;

iv. Padlocking of restaurants found to be unsanitary or of theaters showing obscene movies; and

v. Abatement of nuisance per se.

A person who is not impleaded in a complaint cannot be bound by the decision rendered therein (NHA vs. Evangelista, GR No. 140945, May 6, 2005).

4. Judgment must be rendered upon lawful

hearing.

No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law which it is based (sec. 14, Art. VIII).

PUBLICATION as part of Due Process Publication is imperative to the validity of laws, PDs, EOs, Administrative Rules and Regulations, and is an indispensable part of due process (Tañada vs. Tuvera, 146, SCRA 446). APPEAL and Due Process Appeal is not a natural right nor is it part of due process. Generally, it may be allowed or denied by Congress. But Congress cannot remove the minimum appellate jurisdiction of the SC and its denial, when allowed by the Constitution, is denial of due process. PRELIMINARY INVESTIGATION and Due Process Preliminary investigation is not a constitutional right. It may be waived expressly or by failure to invoke it on time. But where granted by law, denial of the same is an infringement of the due process clause (Go vs. CA, 206 SCRA 138).

Refer to Remedial Law Reviewer for more discussion. (see sec. 1 and 6, Rule 112, ROC).

ADMINISTRATIVE DUE PROCESS (Ang Tibay vs. CIR, 69 Phil. 635) 1. The right to a hearing, which includes the right to

present one’s case and submit evidence in support thereof;

2. The tribunal must consider the evidence presented;

3. The decision must have something to support itself;

4. The evidence must be substantial; 5. The decision must be rendered on the evidence

presented at the hearing, or at least contained in the record and disclosed to the parties;

6. The tribunal or any of its judges must act on its own independent consideration of the facts and the law of the controversy and not simply accept the views of a subordinated in arriving at a decision; and

7. The board or body should, in controversial questions, render its decision in such a manner that the parties to the proceeding will know the various issues involved, and the reasons for the decision.

Administrative Charge in Relation to Due Process In an administrative case, a public officer who is charged of simple misconduct cannot be found guilty of grave misconduct. The SC held: ―We sustain the


ruling of the Court of Appeals that: (a) a basic requirement of due process is that a person must be duly informed of the charges against him and (b) a person cannot be convicted of a crime with which he was charged. Administrative proceedings are not exempt from basic and fundamental procedural principles, such as the right to due process in investigations and hearings (CSC vs Lucas, L-127838, Jan. 21, 1999, EN BANC). Constitutional and Statutory Due Process The first protects the individual from the government and assures him of his rights in criminal, civil or administrative proceedings; while the latter – as that found in the Labor Code – protects employees from being unjustly terminated without just cause, after notice and hearing (Agabon vs. NLRC, GR No. 158693, Nov. 17, 2004). Void-for-vagueness Rule When a statute forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess as its meaning is deemed void. Such kind violates the first essential of due process. It denies the accused the right to be informed of the charged against him (Estrada vs. Sandiganbayan, GR NO. 148560, Nov. 19, 2001).

EQUAL PROTECTION OF THE LAWS All persons or things similarly situated should be treated alike, both as to the rights conferred and responsibilities imposed. Applies to both natural and juridical persons; but artificial persons enjoy protection only with respect to their property. SCOPE OF EQUALITY 1. Economic; 2. Political;

As a rule, the Constitution places the civil rights of aliens on an equal footing with those of citizens; but their political rights do not enjoy the same protection (Forbes vs. Chuoco Tiaco, 16 Phil. 534).

3. Social. VALID CLASSIFICATION Persons or things ostensibly similarly situated may, nonetheless, be treated differently if there is a basis for valid classification. Requisites: 1. Substantial distinctions –

Filipino female domestic helpers working abroad (PASE vs. Drilon, 163 SCRA 386.

Alien and a national under the Retail Trade Nationalization Law (Ichong vs. Hernandez, supra).

Policemen and other government employee as policemen may be suspended lasting until the termination of a criminal case filed against him under sec. 47, RA 6975 (Himagan vs. P., 237 SCRA 538).

Print and broadcast media (Telecommunications and Broadcast Attorneys vs. COMELEC, 289 SCRA 337).

Note: Every classification made by law is presumed reasonable, and the party who challenges the law must present proof of arbitrariness. Some Not Valid Classifications:

Election as a congressman is not a reasonable basis for valid classification in criminal law enforcement (P. vs. Jalosjos, GR No. 132875, Feb 3, 2000).

―Foreign hires‖ and ―local hires‖ International School Alliance vs. Quisumbing, GR No. 128845, June 1, 2000).

2. Germane to the purpose of the law – the

distinctions should have a reasonable relation to the purpose of the law.

3. Not limited to existing conditions only

An ordinance imposing a tax on a named taxpayer [Ormoc Sugar Company], and none other, was held invalid because it will not apply in case a new sugar central will be established (Ormoc Sugar Co. vs. Treasurer of Ormoc City (22 SCRA 603).

4. Must apply equally to all members of the

same class.

The withdrawal of franking privileges formerly granted to the judiciary but remain in the executive and legislative branch was declared unconstitutional because the 3 branches are similarly situated [sec. 35, RA 7354] (Phil. Judges Ass. vs. Prado, 227 SCRA 703).

The act of the mayor in granting permit in favor of unidentified vendors while imposing numerous requirements upon Baclaran Credit Cooperative violated equal protection clause (Olivarez vs. Sandiganbayan, 248 SCRA 700).

Equal protection clause is not violated by an executive order issued pursuant to law, granting


tax and duty incentives only to businesses an residents within the ―secured area‖ of the Subic Special Economic Zone and denying the same to those who live within the Zone but outside the ―fenced-in‖ territory (Tiu vs. CA, GR No. 127410, Jan. 20, 1999).

A compromise agreement between the PCGG

and the Marcoses providing that the assets to be retained by Marcos family are exempt from all taxes violates equal protection clause (Chavez vs. PCGG, GR No. 130716, Dec. 9, 1998).

Tests in determining compliance with the equal protection clause: 1. Rational Basis Test – The guaranty of the

equal protection of the laws is not validated by legislation based on reasonable classification. This standard of review is typically quite differential.

Legislative classifications are ―presumed to be valid‖ largely for the reason that ―the drawing of lines that create distinctions is peculiarly a legislative task and unavoidable one.‖

2. Strict Scrutiny Test – It is applied when the

challenged statute either classifies on the basis of an inherently suspect characteristic, or infringes fundamental constitutional rights.

In these situations, the usual presumption of constitutionality is reversed, and it falls upon the government to demonstrate that its classification has been narrowly tailored to further compelling governmental interest; otherwise, the law shall be declared unconstitutional for violating the equal protection clause (Biraogo vs. Philippine Truth Commission, GR No. 192935, Dec. 7, 2010).

Usually applied in statutes affecting the freedom of expression.

3. Intermediate Scrutiny Test - The government

must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest (Biraogo vs. PTC, supra).

Rational Basis Strict Scrutiny Intermediate Scrutiny

Applicability

Legislative classification in general, such

as pertaining to economic or

Legislative classification

affecting fundamental

rights or

Legislative

classifications based on gender or

social legislation

suspect classes

illegitimacy

Legislative Purpose

Must be legitimate

Must be compelling

Must be important

Relation of the classification to the purpose

Classification must be rationally

related to the legislative purpose

Classification is the least restrictive means to

protect the compelling

State interest

Classification must be

substantially related to the

legislative purpose

Determination of the Test to be Applied: The choice of the appropriate test for evaluating a legislative classification is dependent of the nature of the right affected and the character of the person allegedly discriminated against (Central Bank Employees vs. BSP, supra).

Section 2. The right of the people to be

secure in their persons, houses, papers, and

effects against unreasonable searches and

seizures of whatever nature and for any

purpose shall be inviolable, and no search

warrant or warrant of arrest shall issue except

upon probable cause to be determined

personally by the judge after examination

under oath or affirmation of the complainant

and the witnesses he may produce, and

particularly describing the place to be

searched and the persons or things to be

seized.

Purpose: The protection of – 1) the sanctity and privacy of a person himself; and 2) the inviolability of a person’s home and his

possessions. SCOPE OF PROTECTION Available to all persons, including aliens whether accused of a crime of not. Artificial persons may be required to open their books of accounts for examination in the exercise of police and taxing powers of the State (Moncada vs. People’s Court, 80 Phil. 1). Note: Protection guaranteed is immunity of persons, NOT places: The right against unreasonable searches and seizures is the immunity of one person, which includes his residence, his papers, and other possessions. To conclude otherwise would not only mean swimming against the stream, it would also lead to the absurd logic for a person to be immune against unreasonable searches and seizures, he


must be in his home or office, within a fenced yard or a private place (P. vs. Valdez, 25, Sept. 2000). Nature: The right is personal and may be invoked only by the person entitled to it (Stonehill vs. Diokno, 20 SCRA 383).

As a right, it may be waived, either expressly or

impliedly, by the person whose right is invaded (P. vs. Malasugui).

The right is directed only against the government and its agencies tasked with the enforcement of the law. It does not extend to acts committed by private individuals (P. vs. Marti, 193 SCRA 57).

The Bill of Rights does not protect citizens from unreasonable searches and seizures by private individuals (Waterous Drug Corp. vs. NLRC, GR No. 113271, Oct. 16, 1997).

Availability of the Right Once privacy is established, the next inquiry is whether the search alleged to have violated such right was reasonable (Pollo vs. Constantino–David, GR No. 181881, Oct. 18, 2011). Searches and Seizure, when unreasonable: Searches and seizures are normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest (Bernas, 2011) The question of reasonableness of the search is

purely a judicial question determinable by considering the circumstances involved (Valmonte vs. De Villa, 178 SCRA 211).

ONLY A JUDGE MAY ISSUE A WARRANT Art. 38 [c] of the Labor Code which grants the Sec. of Labor the authority to issue orders of arrest, search and seizure was declared unconstitutional (Salazar vs. Achacoso, 183 SCRA 145). An order issued by the PCGG requiring the submission of all banks documents is in the nature of a search warrant which the PCGG may not validly issue because it is not a judge (Republic vs. Sandiganbayan, 255 SCRA 438). Exception: Administrative authorities for purposes of carrying out a final finding of violation of law. Like –

a) An order of deportation, but not for purposes of investigation;

Take Note: In an aberrant (unique) case the SC upheld the validity of arrest of pedophiles on orders of the Immigration Commissioner because there was

probable cause (Harvey vs. Santiago, 162 SCRA 840).

b) Order of contempt in Legislative proceedings.

REQUISITES FOR A VALID WARRANT 1. Probable Cause –

Probable cause for search warrant: Such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place to be searched (Burgos vs. Chief of Staff, 133 SCRA 541). Must refer to one specific offense.

But one search warrant may be validly issued for several violations of the Dangerous Drugs Act (P. vs. Dichoso, 223 SCRA 174).

In illegal possession of firearms, probable cause means that there must be allegation that the accused does not have the license of permit to possess the same and a certification from the appropriate agency that the accused was not licensed to possess a firearm (Nala vs. Barroso, GR No. 153087, Aug. 7, 2003).

In cases involving intellectual properties, the basic requirement is the presentation of the master tapes supposed to be copied (Columbia Pictures vs. CA, 262 SCRA 219).

2. Determination of probable cause personally

by the judge. Issuance of a warrant of arrest is NOT a

ministerial function of the judge. NOTE: For the issuance of a warrant of arrest, it is sufficient that the judge personally determine the existence of probable cause. It is not necessary that he should personally examine the complainant and his witnesses (Soliven vs. Makasiar, 167 SCRA 393). He merely determines the probability, not certainty of, of guilt of the accused and, in so doing; he need not conduct a de novo hearing. He could simply personally review the initial determination of the prosecutor to see to it if it is supported by substantial evidence (Webb vs. De Leon, 247 SCRA 652).


BUT the judge cannot solely rely on the certification of the prosecutor. He cannot be said to have personally determined the existence of probable cause (Lim vs. Felix, 194 SCRA 292),

3. After examination, under oath or affirmation, of the complainant and the witnesses he may produce. Examination must not merely routinary or

pro forma, general, peripheral or perfunctory, but must be probing and exhaustive (P. vs. Delos Reyes, GR No. 140657, Oct. 25, 2004).

The evidence offered by the complainant

and his witnesses should be based on their personal knowledge and not on mere information or belief Thus, ―reliable information‖ and ―evidence gathered and collated by our unit‖ were held not sufficient (Alvarez vs. CFI, 64 Phil. 33, and Burgos vs. Chief of Staff, supra).

Mere affidavits of the complainant and his witnesses were not enough to sustain the issuance of a search warrant (Mata vs. Bayona, 128 SCRA 338).

4. Particularity of description -

Purposes: a) To readily identify the properties to be

seized and thus prevent the seizing of wrong item; and

b) To leave peace officers with no discretion regarding the articles to be seized and thus prevent unreasonable searches and seizures.

General warrants are proscribed and

unconstitutional (Nolasco vs. Pano, 139 SCRA 152).

A search warrant charging violations of two

special penal laws was considered a ―scatter-shot warrant‖, and was null and void (Tambasen vs. P., 246 SCRA 184).

Particularity in warrant of arrest: if it contains

the name/s of the person/s to be arrested, if known. A John Doe warrant satisfies the requirement if there is some personal description [descriptio persona] which will enable the officer to identify the accused.

Particularity in a search warrant: it

particularly describe the things to be seized when the description therein is as specific as

the circumstances will ordinarily allow, or the description expresses a conclusion of fact which will guide the officer in making the search and seizure, or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued.

CAREFUL: Description, however, need

not be technically accurate or necessarily precise.

―An undetermined amount of marijuana [shabu] was held to satisfy the requirement of particularity (P. vs. Tee, GR No. 140546, Jan. 20, 2003).

Search warrant is severable. Invalid portions will not necessarily invalidate the whole warrant. Thus, items not particularly described will just be cut-off without destroying the whole warrant (Uy vs. BIR, GR No. 129651, Oct. 20, 2000).

The place to be searched must also be particularly described. The place to be searched, as described

in the warrant, cannot be amplified or modified by the peace officers’ own personal knowledge of the premises or the evidence which they adduced in support of the application for a warrant (P. vs. CA, GR NO. 126379, June 26, 1998).

The constitution requires search warrants to particularly describe not only the place to be searched, but also the persons to be searched.

PROPERTIES SUBJECT OF SEIZURE

a) Subject of the offense; b) Stolen or embezzled property and other

proceeds or fruits of the offense; c) Property used or intended to be used as a

means for the commission of an offense (sec. 2, Rule 126, ROC).

It is not necessary that the property to

be searched or seized should be own by the person against whom the warrant is issued; it is enough the property is within his control or possession (Burgos vs. Chief of Staff, supra).

Note: For procedural guidelines on the conduct of searches, see sec. 7, Rule 126, ROC. Failure to comply with this requirement [search must be with witnesses] will invalidate the search (P. vs. Gesmundo, 219 SCRA 743).


Note: For more discussion on the procedural aspect of searches and seizures, please refer to Remedial Law Reviewer.

WARRANTLESS ARRESTS (sec. 5, Rule 113, ROC). A peace officer, or even a private person, may effect an arrest without a warrant – a) When the person to be arrested has committed,

is committing, or is attempting to commit an offense in his presence. [in flagrante delictu]. Note: Rebellion is a continuous crime. Thus,

a rebel may be arrested at any time of the day or night (Umil vs. Ramos, 187 SCRA 311).

Kidnapping and serious illegal detention is deemed a continuous crime when the deprivation of liberty is persistent and continuing (Larranaga vs. CA0.

―Presence‖ includes seeing at a distance or hearing the disturbance created (P. vs. Sucro, 195 SCRA 388).

A buy-bust operation is a valid in flagrante arrest

Defense of Frame-up Like alibi, it is viewed with disfavor as it can easily be concocted. Thus, in the absence of proof of any ill motive on the part of the police officers, the defense will not prosper. To prosper, it must be proved by clear and convincing evidence (P. vs. Yuen, GR No. 145014, Feb. 18, 2004). Requisites for in flagrante arrest: (must concur)

I. The person to be arrested must execute and OVERT act indicating that he had just committed, is actually committing, or is attempting to commit a crime; and

II. Such overt act is done in the presence or within the view of the arresting officer.

Thus, reliable information alone, absent

any overt act indicating a felonious enterprise in the presence of the arresting officer, is not sufficient (P. vs. Molina, GR No. 133917, Feb. 19, 2001). In this case the accused was merely holding a bag while riding a tricycle and responded ―boss, if possible we well settle this‖.

b) When the offense had just been committed and there is probable cause to believe, based on his

personal knowledge of facts or of other circumstances, that the person to be arrested has committed the offense. [Hot Pursuit].

Here, there must be a large measure of immediacy between the time the offense is committed and the time of the arrest. If there appreciable lapse of time, a warrant of arrest must be secured.

Some appreciable lapse of time:

One day after the offense (P. vs. Del Rosario, GR No. 127755, April 14, 1999).

8 days after the killing (P. vs. Samus, GR No. 135957, Sept. 17, 2002).

Six days after the shooting (Go vs. CA, 206 SCRA 138).

2 days after the discovery of the crime (P. vs. Olivarez, GR No. 77865, Dec. 5, 1998).

7 days after illegally detaining another (San Agustin vs. P., 432 SCRA 392).

Probable Cause in Warrantless Arrests Such reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a reasonable man in believing the accused to be guilty

The legality of the arrest is not tainted even if the robbery case is not brought to trial. The arrest does not depend on the indubitable existence of the crime (Cadua vs. CA, GR No. 123123, Aug. 19, 1999).

c) When the person to be arrested is a prisoner

who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

d) When the right is voluntarily waived.

It is necessary that the petitioner should question the validity of the arrest before he enters his plea. Failure to do so, would constitute a waiver against illegality of his detention (P. vs. Cachola, GR No. 148712, Jan. 21, 2004). Note: Waiver of the illegality of arrest does not necessarily mean waiver of the right to question the admissibility of the evidence obtain during the arrest (P. vs. Peralta, GR NO. 145176, March 30, 2004).


WARRANTLESS SEARCHES a) When the right is voluntarily waived.

Requisites: 1) The right exists; 2) Knowledge of the person of the

existence of the right, either actual or constructive;

3) Actual intention to relinquish the right; 4) The waiver must be given by the person

whose right is violated.

Thus, waiver made by a househelper of the accused is not valid (P. vs. Damaso, 212 SCRA 457).

There is, however, one case where the waiver was made by a mere ―manicurist‖, a woman identifies as the wife of the occupant (Lopez vs. Comm. Of Customs, 68 SCRA 320).

The consent must be voluntary, unequivocal, specific and intelligently given, uncontaminated by any duress or coercion. It cannot be lightly inferred but must be proved by clear and convincing evidence. The burden of proof is upon the State (Caballes vs. CA, GR NO. 136292, Jan. 15, 2002). The mere silence of the accused was not construed as consent; rather, it was a ―demonstration of regard for the supremacy of the law‖ (P. vs. Barros, 231 SCRA 557). Circumstances to be considered in determining voluntariness:

i. Age of defendant; ii. Place of the search, whether secluded

or public; iii. Whether there was objection of the

defendant just passively looked on; iv. Education and intelligence; v. Presence of coercive police procedure; vi. Belief that no incriminating evidence will

be found; vii. Nature of police questioning; viii. Environment where the questioning took

place; ix. Vulnerable subjective state of the

defendant.

Consent given under intimidating and coercive circumstances is not consent within the purview of the constitutional guarantee (Aniag vs. COMELEC, 237 SCRA 424).

b) Routine airport security procedure as allowed

under RA 6235.

Strip search in the ladies’ room was held valid under the circumstance (P. vs. Canton, GR No. 148825, Dec. 27, 2002)

c) When there is valid reason to ―stop and frisk‖. The right of a police officer to stop a citizen on the street, interrogate him and pat him for weapons whenever he observes unusual conduct which leads him to conclude that criminal activity may be a foot [Terry Search] (Terry vs. Ohio). Requisite: The apprehending officer must have a genuine reason, in accordance with the police officer’s experience and the surrounding conditions, to warrant a belief that the person to be held has weapons or contraband concealed about him. The search must precede the arrest. A suspicion because the petitioner’s ―eyes were moving fast‖ does not justify a search under this rule (Malacat vs. CA, GR No. 123595, Dec. 12, 1997).

d) Where the search is an incident to a lawful arrest. Section 13, Rule 126, ROC. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. Requisites:

i. It is necessary that the apprehending officer must have been spurred by probable cause in effecting the arrest which could be considered as on in cadence with the instances of permissible arrests enumerated in sec. 5, Rule 113, ROC;

ii. Search is contemporaneous with the arrest; Thus, where the officers, after

conducting a buy-bust, reported to the office and subsequently return to the place of sale to conduct a search, such search is invalid.

iii. Made within the permissible area of search – includes the premises or surroundings under his immediate control. Thus, the search inside the house

where the buy-bust operation was conducted outside the house is


invalid (Espano vs. CA, 288 SCRA 558).

Note: Under this exception, the valid arrest must precede the search. The process cannot be reversed (P. vs. Chua Ho San, GR NO. 128222, June 17, 1999).

e) Search of vessels and aircrafts.

Fishing vessel found to be violating fishery laws may be seized without a warrant because –

1) They can easily elude pursuit; and 2) The seizure would be an incident to a

lawful arrest (Roldan vs. Arca, 65 SCRA 336).

f) Search of moving vehicles.

Justified on the ground that it is not practicable to secure a warrant because the vehicle can be moved quickly out of the locality or jurisdiction in which the warrant is sought. Search of moving vehicles may be –

a. Extensive search – when there is probable cause.

b. Routinary search – mere visual search [as a rule in checkpoints] (Caballes vs. CA, GR NO. 136292, Jan. 15, 2002).

g) Inspection of buildings and other premises for

the enforcement of fire, sanitary and building regulations.

h) When prohibited articles are in plain view

Requisites: (P. vs. Aruta, GR No. 120515, April 13, 1998).

i. Prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;

Valid intrusion includes being

present in the place by reason of a warrantless arrest, search with a search warrant for other object sought, search incidental to lawful arrest and other legitimate reasons unconnected with a search directed against the accused (United Lab. vs. Isip, GR No. 163858, June 28, 2005).

ii. The evidence is inadvertently

discovered; iii. Evidence is immediately apparent

without any further search;

iv. Illegality of the evidence must be apparent.

The apparent illegality does not require unduly high degree of certainty as to the incriminating character of the evidence. What is required is merely a probable cause to associate the property with a criminal activity (United Lab. vs. Isip, supra).

Note: An object is in plain view if the object itself is plainly exposed to sight. Where the object is in a closed package, the object is not in plain view. Exception: when the package proclaims its contents, whether by its distinctive configuration, its transparency, or if its contents are obvious to the observer (Caballes vs. CA, supra).

i) Search and seizure under exigent and emergency circumstances. The raid and consequent seizure of firearms and ammunitions in the Eurocar Sales Office at the height of the December 1989 coup d’ etat was held valid (P. vs. de Gracia, 233 SCRA 716).

j) Search in open field.

Sec. 2, Art. III (Bill of Rights) of the Constitution protects the right of the people to be secure in ―their persons, papers and effects‖. The protection does not apply to an open filed where marijuana plants are grown (P. vs. Arsenio Ballesteros, et al., CA, May 24, 1989, 25 O. G. 3422, June 21, 1993 issue).

The rule is different where the marijuana plants are grown in the backyard and the police had to enter the dwelling to be able to get to the backyard to confiscate the plants (P. vs. Compacion (L-12442, July 20, 2001).

k) Search by private individuals.

The constitutional safeguard applies only against the government. (People vs. Marti, 193 SCRA 57).

Under Sec. 388, RA 7160, a barangay tanod

is an agent of a person in authority, just like

police officers. Hence, to be lawful,

searches and seizures conducted by a

barangay tanod must comply with the rules

applicable to other law enforcers.


l) Search of an office computer assigned to a

government employee.

The search of office computer, where personal

files were stored and used by the government

employer as evidence against the respondent in

an administrative case (misconduct), was held

reasonable by SC under the circumstances.

There was no violation of the constitutional right

to privacy as guaranteed by section 2, Article III

of the Constitution. (Pollo vs. Constantino-David,

GR No. 181881, Oct. 18, 2011, En Banc).

Two-Fold Requirement for the Existence of

Right to Privacy:

1) Subjective – that a person has exhibited

an actual expectation of privacy; and

2) Objective – that the expectation be one

that the society is prepared to recognize

as reasonable (Ibid)

EXCLUSIONARY RULE Evidence obtained in violation of sec. 2, art. III of the Constitution shall be inadmissible for any purpose in any proceeding because it is ―the fruit of the poisoned tree‖. The property illegally seized may, however, be

used in evidence in the case filed against the officer/s responsible for the illegal seizure.

Objections to the illegality of the search warrant and to the admissibility of the evidence are deemed waived when not raised during the trial (Demaisip vs. CA, 193 SCRA 373).

Recovery of Seized Articles Should there be no ensuing criminal prosecution in which the personal is seized is used as evidence, its return to the person from which it was taken, or to the person entitled to its possession is but a matter of course, except if it is contraband [or illegal per se]. A proper court may order the return of property held solely as evidence should the government be unreasonably delayed in bringing a criminal prosecution. The order for the disposition of such property can be made when the case is finally terminated (PDEA vs. Brodett and Joseph, GR No. 196390, Spt. 28, 2011).

Search Warrant Warrant of Arrest

Probable Cause

Such facts and circumstances which would lead a reasonably discreet and prudent

Such facts and circumstances which would lead a reasonably discreet and prudent

man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched

man to believe that an offense has been committed by the person sought to be arrested

How probable cause is determined

Depends to a large extent upon the finding/opinion of the judge who conducted the required personal examination of the applicant and the witnesses

The judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, Judge shall – a) Personally evaluate the report and the supporting documents submitted by the Prosecutor regarding the existence of probable cause and the basis thereof, issue a warrant of arrest; or b) If on the basis thereof he finds no probable cause, he may disregard the Prosecutor’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

Section 3. (1) The privacy of communication

and correspondence shall be inviolable except

upon lawful order of the court, or when public

safety or order requires otherwise, as prescribed by law.

(2) Any evidence obtained in violation

of this or the preceding section shall be

inadmissible for any purpose in any proceeding.

Scope: The guarantee includes within the mantle of its protection tangible as well as intangible, objects. The Constitutional Right to Privacy The essence of privacy is the ―right to be let alone.‖ In the 1965 case of Griswold vs. Connecticut, the US Supreme Court gave more substance to the right when it ruled that the right has a constitutional foundation. It held that there is a right of privacy which can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments. In the 1968 case of Morfe vs Mutuc (22 SCRA 424) we adopted the Griswold ruling that there is a constitutional right to privacy.


The SC clarified that the right to privacy is recognized and enshrined in several provisions of our Constitution, as follows:

a. Sec. 3(1), Art. III (Bill of Rights). b. Secs. 1, 2, 6, 8 and 17, Art. III, 1987 Constitution.

Requisites for the Existence of the Right to Privacy:

a) A person has exhibited an actual [subjective] expectation of privacy; and

b) The expectation be one that society is prepared to recognize as reasonable (Pollo vs. Constantino-David, supra).

Read RA 4200 [Anti Wire Tapping Act], Criminal Law Reviewer.

SEC. 7, RA 9372, Human Security Act. Surveillance of Suspects and Interception and Recording of Communications. “ The provisions of Republic Act No. 4200 (Anti-wire Tapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways and means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.

Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.

In one case, the SC held that the right may be invoked against the wife who went to the clinic of her husband and there took documents consisting of private communications between her and his alleged paramour (Zulueta vs. CA, 253 SCRA 699).

Note, however, of the Waterous Drugs case wherein the SC said that the Bill of Rights does not protect citizens from unreasonable searches and seizures made by private individuals.

Letters addressed by a lawyer (of one of the parties to a case) addressed to individual Justices of the SC in connection with the performance of their functions are matters of concern for the entire court, and therefore not covered by the constitutional guarantee (In Re: Laureta, 148 SCRA 382).

A letter written by the accused to a witness which was produced by the witness during trial is admissible. It was produced by the recipient who identified the same. Besides, there is nothing self-incriminatory on the letter (P. vs. Albofera, 152 SCRA 123).

The Right of Privacy of Detainees The right to privacy of those detained is subject to sec. 4, RA 7438, stating in part that any security officer with custodial responsibility over a detainee may undertake such reasonable measures to secure his safety and prevent his escape. By the fact of their detention, pre-trial detainees and convicted prisoners have a diminished expectation of privacy (Trillanes III vs. Cabuay, GR No. 160792, Aug. 25, 2005). Examination of Letters and Sealed Packages Letters and sealed packages in the [public] mails may be examined only as to their external appearance and weight and may not be opened except in accordance with the constitutional requirements of search and seizure (US Supreme Court). Note: See also the Wirt of Habeas Data in Remedial Law Reviewer.

Section 4. No law shall be passed abridging

the freedom of speech, of expression, or of

the press, or the right of the people

peaceably to assemble and petition the government for redress of grievances.

SCOPE Any and all modes of expression are covered in the guaranty.

Includes freedom to say what is in his mind and not to say what is not in his mind.

Also includes the right to be an audience, in the state that a person may not be prohibited from hearing what the other person has to say.

Note: Freedom of speech is formulated primarily for the protection of the ―Core Speech‖ which communicates political, social and religious ideas.


Limitation: Freedom of expression is NOT absolute. it is always subject to the police power of the State. This is premised on the need to protect society from injurious exercise of said freedom and the need to promote or protect public welfare, public safety, public morals and national security (Suarez, 2008). Cognate Rights Embraced in Freedom of Expression: 1) Freedom of speech, 2) Freedom of the press, 3) Freedom of assembly, 4) Freedom of religion, 5) The right of association, 6) The right to access to information on matters of

public concern, and 7) The right not to be detained solely by reason of

one’s political beliefs and aspirations.

ASPECTS OF FREEDOM OF EXPRESSION

A. Freedom form censorship or prior restraint

There need not be total suppression; even

restriction of circulation constitutes censorship (Grosjean vs. American Press, 297 US 233).

Tax on Knowledge: Censorship which is the unlawful curtailment of the free flow of ideas need not partake of total suppression (so that the same could be declared unconstitutional); even restriction of circulation is unconstitutional. A statute imposing a tax upon all periodicals publishing more than 20,000 copies per issue was declared invalid because it tended to limit the circulation of any such periodical seeking to avoid the payment of the tax (Ibid).

The arbitrary closure of a radio station DYRE

was held violative of freedom of expression (Eastern Broadcasting vs. Dans, 137 SCRA 647).

Prohibition against the use of taped jingles in

mobile units used in election campaign was in the nature of censorship (Mutuc vs. COMELEC, 36 SCRA).

Prohibition against radio commentators or

columnists from commenting on the issues involved in the scheduled plebiscite on the organic law creating the CAR was unconstitutional (Sanidad vs. COMELEC, 181 SCRA 529).

Prohibition of posting of decals and stickers in mobile units like cars and other moving vehicles was declared unconstitutional for infringement of freedom of expression (Adiong vs. COMELEC, 207 SCRA 712).

Movie Censorship The power of the MTRCB can be exercised only for the purposes of classification and NOT censorship. The SC upheld the primacy of freedom of expression over Enrile’s right to privacy, because Enrile was a ―public figure‖ and public figure’s right to privacy is narrower than that of a ordinary citizen (Ayer Productions vs. Judge Capulong, 160 SCRA 861). Giving an ―X-rating‖ to a religious TV program on the ground that it attacks another religion constitutes grave abuse of discretion on the part of the MTRCB. Such classification can be justified only if there is a showing of clear and present danger which the State has the right to prevent (Iglesia ni Cristo vs. CA, 259 SCRA 529). Under sec. 7, PD 1986, television programs imprinted or exhibited by the Philippine government and/or its departments and agencies, and newsreels are exempted from the power of review by the MTRCB. ―The Inside Story‖, a public affairs program described as a variety news treatment cannot be considered a newsreel (MTRCB vs. ABS-CBN, GR No. 155282, Jan. 17, 2005). Sec. 5.4 of RA 9006 providing that surveys affecting national candidates shall not be published 15 days before an election and surveys affecting local candidates shall not be published 7 days before an election was declared unconstitutional (SWS vs. COMELEC, GR No. 147571, May 5, 2001). O’BRIEN TEST: (US vs. O’Brien, 391 US 365) Government regulation is valid if –

1) It is within the constitutional power of the government;

2) Furthers an important or substantial governmental interest;

3) The governmental interest is related to the suppression of free expression;

4) The restriction on the freedom is no greater than is essential to the furtherance of that interest.

OVERBREATH DOCTRINE A prohibition on the government from achieving its purpose by ―means unnecessarily broad, reaching constitutionally protected as well as unprotected activity. The essence is that the government has gone too far.


GR: The established rule is that a party can question the validity of a statute only if, as applied to him, it is unconstitutional. Exception: ―FACIAL CHALLENGE‖ The Overbreath Doctrine permits a party to challenge the validity of a statute even though, as applied to him, it is not unconstitutional, but it might be applied to others, not before the Court, whose activities are constitutionally protected. Invalidation of the statute ―on its face‖ rather than ―as applied‖, is permitted in the interest of preventing a ―chilling effect‖ on freedom of expression (Cruz vs. Mendoza, Justice Mendoza, Concurring opinion, GR No. 135385, Dec. 6, 2000). Note: A facial challenge is the most difficult challenge to mount successfully since the challenge must establish that no set of circumstances exists under which the act would be valid (Estrada vs. Sandiganbayan, GR No. 148560, Nov. 19, 2001).

Content-Based regulations

Content-Neutral regulations

The restriction is based on the subject matter of the utterance or speech

Merely concerns with the incidents of the speech, or one that merely controls the time, place or manner, and under well-defined standards

Tests Applied

Strict Scrutiny Test – over-breadth; void-for-

vagueness rule

Intermediate approach

The Challenged act must overcome the clear and present danger rule to be valid

Only substantial governmental interest is required for its validity

Application

A rule prohibiting columnists, commentators and announcers from campaigning either for or against an issue in a plebiscite was held invalid. There was no compelling reason to justify such curtailment of the freedom of speech (Sanidad vs. COMELEC)

Regulation of time, place and manner of holding a public assembly under BP 880

B. Freedom from subsequent punishment.

Without this assurance, the individual would hesitate to speak for fear that he might be held to account for his speech, or that he might be provoking the vengeance of the officials he may have criticized. However, the freedom is not absolute, and may be properly regulated in the interest of the public. Accordingly, the State may impose penal, civil, and or administrative sanctions.

Doctrine of Fair Comment - [as a valid defense in an action for libel or slander]: Fair commentaries on matters of public interest are privileged and constitute a valid defense in an action for libel or slander. The doctrine means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public (official) capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might reasonably be inferred from the facts. (Borjal vs CA, 301 SCRA 1, Jan. 14, 1999, 2

nd Div.).

Criticism of Official Conduct Individual is given the widest latitude in criticism of official conduct. The SC compared criticism to a ―scalpel that relieves the abscesses of officialdom‖ (US vs. Bustos, 37 Phil. 731). New York Times Doctrine: Honest criticisms on the conduct of public officials and public figures are insulated from libel judgments (New York Times vs. Sullivan, 376 US 254) The ―raison d’etre‖ for the New York Times doctrine was that to require critics of official conduct to guarantee the truth of all their factual assertions on pain of libel judgments would lead to self-censorship, since would-be critics would be deterred from voicing out their criticisms even if such were believed to be true, or were in fact true, because of doubt whether it could be proved or because of fear of the expense of having to prove it. (Borjal vs CA, supra).

Thus, a public official may not be allowed from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice.


Sub Judice Rule: However, the SC said that publication that tends to impede, embarrass or obstruct the court and constitutes a clear and present danger to the administration of justice is not protected by the guarantee of press freedom and is punishable by contempt (In Re: Atty. Emiliano P. Jurado, Jr.). Right of Students to Free Speech in School Premises The school cannot suspend or expel a student on the basis of the articles he has written, except when such article materially disrupts class work or involves substantial disorder or invasion of rights of others (Miriam College vs. CA, GR No. 127930, Dec. 15, 2000).

TESTS OF VALID GOVERNMENTAL INTERFERENCE a) Clear and Present Danger Rule – whether the

words are used in such circumstances and of such a nature as to create a clear and present danger that will bring about the substantive evils that the State has the right to prevent (Schenck vs. US, 249 US 97). Note: ―Clear‖ indicates causal connection with the danger of the substantive evil from the utterance in question while ―present‖ indicates time element, identified with imminent and immediate danger; the danger must not only be probable but very likely inevitable (Gonzales vs. COMELEC, No. L-27833, April 18, 1969).

It seems that there is more inclination to apply the clear and present danger rule.

b) Dangerous Tendency Rule – the words uttered

create a dangerous tendency of an evil which the State has the right to prevent. It is sufficient if the natural tendency and the probable effect of the utterance were to bring about the substantive evil that the legislative body seeks to prevent (Cabansag vs. Fernandez, 102 Phil. 152).

c) Balancing of Interests Test – when particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, or partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the circumstances presented (American Communication Ass. vs. Douds, 339 US 282).

State Regulation of Different Types of Media Freedom of television and radio broadcasting is somewhat lesser in scope than that accorded to

newspaper and print media (EBC vs. Dans, GR No. L-59329, July 19, 1985). Commercial Speech Communication whose sole purpose is to propose a commercial transaction. It has NOT, however, been accorded the same protection as that given to what is called ―core speech‖ (Bernas, 2003). For commercial speech to enjoy protection, it must not be false or misleading and should not propose an illegal transaction (Friedman vs. Rogers, GR No. 77-1163, Feb. 21, 1979) However, even truthful and lawful commercial speech may be regulated if –

i. government has substantial interest to protect;

ii. the regulation directly advances that interest;

iii. it is not more extensive that is necessary to protect that interest;

iv. it is not overbroad (Central Hudson Gas vs. Public Service Commission, GR No. 79565, June 20, 1980).

Government Speech The government speech doctrine establishes that the government may advance or restrict its own speech in a manner that would clearly be forbidden were it regulating the speech of a private citizen. Thus, when the state is the speaker, it may make content based restrictions, OBSCENE It means something offensive to chastity, decency, or delicacy (US vs. Kottinger, 45 Phil. 352). Test of Obscenity [Miller vs. California, No. 70-73, June 21, 1973]:

i. whether the average person applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient [unwholesome sexual interest] interest;

ii. whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable law;

iii. whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The test of obscenity is whether the matter has a tendency to deprave or corrupt the minds of those who are open to immoral influences. A matter can also be considered obscene if it shocks the ordinary and common sense of men as indecency.


Mere nudity in pictures or paintings is not obscenity. The test is whether the motive of the picture, as indicated by it, is pure or impure; or whether it is calculated to excite impure imaginations (P. vs. Serrano, CA, GR NO. 5566-R, Nov. 24, 1950). It was observed that movies, compared to other media of expression, have greater capacity for evil and are consequently subject to more regulation. Note: See art. 201, RPC, and sec. 9, RA 7610.

ASSEMBLY AND PETITION

BATAS PAMBANSA BLG. 880

AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT PEACEABLY TO ASSEMBLE

AND PETITION THE GOVERNMENT FOR OTHER PURPOSES

Section 1.Title - This Act shall be known as "The Public Assembly Act of 1985."

Section 2.Declaration of policy - The constitutional right of the people peaceably to assemble and petition the government for redress of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law.

Section 3.Definition of terms - For purposes of this Act:

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the government for redress of grievances.

The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local ordinances: Provided, however, That the declaration of policy as

provided in Section 2 of this Act shall be faithfully observed.

The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227.

(b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square, and/or any open space of public ownership where the people are allowed access.

(c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same.

Note: In view of the maximum tolerance mandated by BP 880, Calibrated Preemptive Response serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by law itself, namely, maximum tolerance. (Bayan vs. Ermita, GR No. 169838, April 25, 2006).

(d) "Modification of permit" shall include the change of the place and time of the public assembly, rerouting of the parade or street march, the volume of loud-speakers or sound system and similar changes.

Section 4.Permit when required and when not required - A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act.


Section 5.Application requirements - All applications for a permit shall comply with the following guidelines:

(a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used.

(b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof.

(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly.

(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building.

Section 6.Action to be taken on the application -

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health.

(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed.

(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall

immediately inform the applicant who must be heard on the matter.

(d) The action on the permit shall be in writing and served on the application within twenty-four hours.

(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law.

(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall, be immediately executory.

(g) All cases filed in court under this Section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.

(h) In all cases, any decision may be appealed to the Supreme Court.

(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Section 7.Use of public thoroughfare - Should the proposed public assembly involve the use, for an appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so that there will be no serious or undue interference with the free flow of commerce and trade.

Section 8.Responsibility of applicant - It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all reasonable measures and steps to the end that the intended public assembly shall be conducted


peacefully in accordance with the terms of the permit. These shall include but not be limited to the following:

(a) To inform the participants of their responsibility under the permit;

(b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the public assembly;

(c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held peacefully;

(d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and

(e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons not participating in the public assembly.

Section 9.Non-interference by law enforcement authorities - Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meter away from the area of activity ready to maintain peace and order at all times.

Section 10.Police assistance when requested - It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines:

(a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must

observe the policy of "maximum tolerance" as herein defined;

(b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards;

(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property.

Section 11.Dispersal of public assembly with permit - No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows:

(a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance;

(b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed;

(c) If the violence or disturbances prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse;

(d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such


arrest shall be governed by Article 125 of the Revised Penal Code, as amended:

(e) Isolated acts or incidents of disorder or branch of the peace during the public assembly shall not constitute a group for dispersal.

Section 12.Dispersal of public assembly without permit - When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed.

Section 13.Prohibited acts - The following shall constitute violations of this Act:

(a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly;

(b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other official acting in his behalf.

(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf;

(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly;

(f) Acts in violation of Section 10 hereof;

(g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof;

1. the carrying of a deadly or offensive weapon or device such as firearm, pillbox, bomb, and the like;

2. the carrying of a bladed weapon and the like;

3 the malicious burning of any object in the streets or thoroughfares;

4. the carrying of firearms by members of the law enforcement unit;

5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems.

Section 14.Penalties -

Section 15.Freedom parks - Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit.

In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity of this Act.

Section 16.Constitutionality [Separability Clause]- Section 17.Repealing clause – Section 18.Effectivity - Approved, October 22, 1985 Notes: The right to assemble is not subject to prior restraint. It may not be conditioned upon the prior issuance of a permit or authorization. However, the right must be exercised in such a way as well not prejudice public welfare. Thus, if the assembly is to be held in a public place, a permit for the use of such place, and NOT for the assembly itself. The power of local officials is merely one of regulation (Primicias vs. Fugoso, 80 Phil. 71). Or where the right is exercised by public school

teachers during regular school days instead of during free time, the teachers committed acts prejudicial to the best interest of the service (De la Cruz vs. CA, GR Nos. 126183 & 129221, March 25, 1999).

To justify limitations on freedom of assembly there must be proof of sufficient weight to satisfy


clear and present danger test (JBL Reyes vs. Bagatsing, GR No. L-65366, Nov. 9, 1983).

NO PERMIT IS REQUIRED (Public Assembly Act)

1) Meeting is to be held in a private place; or 2) In the campus of a government-owned or

operated educational institution; or 3) In freedom parks.

Maximum Tolerance vs. CPR In view of the maximum tolerance mandated by BP 880, Calibrated Preemptive Response [CPR] serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by law itself, namely, maximum tolerance. (Bayan vs. Ermita, GR No. 169838, April 25, 2006). HECKLER’S VETO Occurs when an ―acting‖ party’s right to freedom of speech is curtailed or restricted by the government in order to prevent a ―reacting‖ party’s behavior.

This may be in the guise of a permit requirement in the holding of rallies, parades or demonstrations conditioned on the payment of a fee computed on the basis of the cost needed to keep order in view of the expected opposition by persons holding contrary views (Gorospe, 2006).

Note: it is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feelings are always brought to a high pitch of excitement, and the greater the grievance and the more intense the feelings, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers (Subayco vs. Sandiganbayan, 260 SCRA 798). Note that while government employees may form associations for their benefit and protection, they may not, however, stage a strike to the prejudice of public service (Bangalisan vs. CA, GR No. 124687, July 23, 1997). Public Assembly in a Particular Place The exercise of such right, in the language of Justice Roberts, speaking for the American SC, is not to be abridged on the pleas that it may be exercised in some other place.‖ (IBP vs. Atienza, GR No. 175241, Feb. 24, 2010). Academic Freedom and Freedom of Expression While the Court upheld the academic freedom of institution of higher learning, which includes the right

to set academic standards to determine what failing grades suffice for expulsion of students, this right cannot be utilized to discriminate against those who exercise their constitutional rights to peaceful assembly (Villar vs. TIP, 135 SCRA 706). Demonstrations in the Vicinity of Courts Demonstrations, picketers, rallyists and all other similar persons are enjoined [prohibited] from holding any activity on the sidewalks and streets adjacent to, in front of, or within a radius of 200 meters from, the outer boundary of the SC Building, any Hall of Justice, and any other building that houses at least 1 court sala (In Re Petition to Annul 98-7-02-SC) Hierarchy of Right The right to free assembly and petition prevails over economic rights (PBM Employees Ass. vs. PBM Steel). PRIOR TESTS APPLIED BY THE COURT (for the denial or grant of a permit to hold a public assembly)

a) Purpose Test – the test is the purpose for which the assembly is held, regardless of the person who organized it.

b) Auspices Test – regardless of the purpose, the determinative is the character of the persons organizing the public assembly (Evangelista vs. Earnshaw, 57 Phil. 255).

Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.

3 Principal Parts of Sec. 5: i. Non-establishment Clause; ii. Free Exercise Clause; iii. Non-religious Test Clause.

RELIGION Any specific system of belief, worship, conduct, etc., often involving a code of ethics and philosophy; profession of faith to an active power that binds and elevates man to his Creator (Aglipay vs. Ruiz, No. L-45459, March 13, 1937). Criteria to qualify as a religion under the First Amendment: [Estrada vs. Escritor, infra.]

a. There must be a belief in God or some parallel belief that occupies a central place in the believer’s life;

b. the religion must involve a moral code transcending individual belief;


c. A demonstrable sincerity in belief, but the court must not inquire into the truth or reasonableness of the belief;

d. There must be some associational ties although there is also a view that religious beliefs held by a single person are entitled to protection.

NON-ESTABLISHMENT CLAUSE This means that the State cannot set up a church, nor pass laws which aid one religion, aid all religion, or prefer one religion over another, nor force nor influence a person to go or remain away from church against his will or force him to profess a belief or disbelief in any religion (Everson vs. Board of Education, 30 US 1). ―School Prayer Case‖ – The recitation by the students in public schools in New York of a prayer composed by the Board of Regents was held unconstitutional (Engel vs. Vitale, 370 US 421). Classifying foods as halal is a religious function because the standards used are drawn from the Qu’ran and Islamic beliefs. Thus, giving the Office of Muslims Affairs the exclusive power to classify products as halal encroached upon religious freedom (Islamic Dawah Council vs. Office of the Executive Secretary (GR No. 153888, July 9, 2003). Tests whether or not there is violation of non-establishment clause:

i. The statute has a secular legislative purpose;

ii. Its principal or primary effect is one that neither advances nor inhibits religion;

iii. It does not foster an excessive government entanglement with religion.

INTRAMURAL RELIGIOUS DISPUTE Where the civil right depends upon some matter pertaining to ecclesiastical affairs, the civil tribunals tries the civil right and nothing more (Gonzales vs. Archbishop of Manila, 51 Phil. 420). If what is involved is the relationship of the church as an employer and the minister as an employee, the (courts) NLRC may assume jurisdiction It is purely secular and has no relation whatsoever with the practice of faith, worship or doctrine of the church (Austria vs. NLRC, GR No. 124382, Aug. 16, 1999). The expulsion or excommunication of members of a religious institution is a matter best left to the discretion of officials and laws and canons of such institution (Taruc vs. Bishop de la Cruz, GR No. 144801, March 10, 2005).

FREE EXERCISE CLAUSE Aspects of Freedom of Religious Profession and Worship:

1) Right to believe [which includes the right NOT to believe] – absolute.

2) Right to act on one’s beliefs – this is subject to regulation pursuant to the police power.

The Court upheld the right of the petitioners to

refuse to salute the Philippine flag on account of their religious scruples (Ebralinag vs. Division Superintendent, 219 SCRA 256 [1993]).

The SC upheld the constitutionality of RA 3350, exempting members of religious from being compelled to join a labor union (Victoriano vs. Elizalde Rope Workers, 59 SCRA 54).

The SC recognized the right to proselytize as

part of religious freedom, and invalidated the application of a city ordinance imposing license fees on the sale of religious merchandize (American Bible Society vs. City of Manila, 101 Phil. 386).

Tests in determining violations of the free exercise clause

a. Clear and Present Danger Rule; b. Compelling State Interest Test.

THE COMPELLING STATE INTEREST TEST Benevolent neutrality recognizes that government must pursue its secular goals and interests, but at the same time, strive to uphold religious liberty to the greatest extent possible within the flexible constitutional limits. Thus, although the morality contemplated by law is secular, benevolent neutrality could allow for accommodation of morality based on religion, provided that it does not offend compelling state interest (Estrada vs. Escritor, AM No. P-02-1651, Aug. 4, 2003). The following must be inquired under the test –

a) Whether the respondent’s right to religious freedom has been burdened; and

b) To ascertain respondent’s sincerity in her religious belief.

Solicitations for religious purposes are not covered by PD 1564 [Solicitation Permit Law] which requires a prior permit from DSWD in solicitations for charitable or public welfare purposes (Centeno vs. Villalon, 236 SCRA 197). RA 7716, in so far as the sale of religious articles, as well as their printing and publication, is subject to VAT, is not unconstitutional [Tolentino vs. Sec. of


Finance]. In US Supreme Court case, it was held that the free exercise clause does not prohibit imposing a generally applicable sales and use tax on the sale of religious materials by religious organization (Jimmy Swagart Ministries vs. Board of Equalization).

Section 6. The liberty of abode and of

changing the same within the limits

prescribed by law shall not be impaired

except upon lawful order of the court. Neither

shall the right to travel be impaired except in

the interest of national security, public safety, or public health, as may be provided by law.

Limitation on the liberty of abode: Lawful order of the court within the limits prescribed by law. The ―deportation‖ of some 170 women of ill

refute to Davao on orders of the Mayor of Manila was held unlawful (Villavicencio vs. Lukban, 39 Phil. 778).

The maid has the right to transfer to another residence even if she had not yet paid the amount advanced for her transportation from the province by an employment agency (Caunca vs. Salazar, 82 Phil. 851).

However, the Court held that the respondents

were justified in requiring the members of certain non-Christian tribes to reside only within a reservation area. This was intended to promote their better education, advancement and protection (Rubi vs. Provincial Board of Mindoro).

See also art. 13 of UDHR and art. 12 of CCPR. Limitation on the right to travel: interest of national security, public safety or public health, as may be provided by law.

An administrative order suspending the deployment of female domestic helpers abroad was upheld (PASE vs. Drilon, supra).

The SC sustained the refusal of the government to allow the petitioner’s return to the country on the ground that it would endanger national security (Marcos cs. Manglapus, 178 SCRA 760).

Note: A lawful order of the court is also a valid restriction on the right to travel. The court may validly refuse to grant the accused permission to

travel abroad, even if he is out on bail (Manotoc vs. CA, 142 SCRA 149).

Liberty of Abode Right to Travel

May be impaired only upon lawful order of a court within the limits prescribed by law

May be curtailed by a lawful order of a court and even by administrative authorities in the interest of national security, public safety or public health as may be provided by law

The following principles were laid down in Defensor-Santiago vs. Vasquez, 217 SCRA 633:

i. The hold-departure order is but an exercise of the court’s inherent power to preserve and maintain the effectiveness of is jurisdiction over the case and over the person of the accused;

ii. The posting bail, the accused holds herself amenable at all times to the orders and processes of the court;

iii. Parties should apply for permission to leave the country from the same courts which, in the first instance, are in best position to pass upon such applications.

Whether the accused should be allowed to leave

the country for humanitarian reasons is a matter addressed to the court’s discretion (Marcos vs. Sandiganbayan, GR No. 115132, Aug 9, 1995).

SEC. 26, RA 9372. Restriction on Travel. – In cases where evidence of guilt is not strong, and the person charged with the crime of terrorism or conspiracy to commit terrorism is entitled to bail and is granted the same, the court, upon application by the prosecutor, shall limit the right of travel of the accused to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety, consistent with Article III, Section 6 of the Constitution. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of his bail, which shall then be forfeited as provided under the Rules of Court.

He or she may also be placed under house arrest by order of the court at his or her usual place of residence.


While under house arrest, he or she may not use telephones, cellphones, e-mails, computers, the internet or other means of communications with people outside the residence until otherwise ordered by the court.

The restrictions abovementioned shall be terminated upon the acquittal of the accused or of the dismissal of the case filed against him or earlier upon the discretion of the court on motion of the prosecutor or of the accused.

Section 7. The right of the people to

information on matters of public concern shall

be recognized. Access to official records, and

to documents and papers pertaining to official

acts, transactions, or decisions, as well as to

government research data used as basis for

policy development, shall be afforded the

citizen, subject to such limitations as may be

provided by law.

SCOPE OF THE RIGHT The right to information contemplates inclusion of negotiations leading to the consummation of the transaction. However, the right only affords access to records, documents and papers, which means the opportunity to inspect and copy them at his expense. The exercise is subject to reasonable regulations to protect the integrity of the records and minimize disruption of government operations (Chavez vs. PEA and Amari, GR No. 133250, July 9, 2002). Availability: These are political rights that are available to citizens only (Bernas, 2006). Test: The threshold question is, therefore, whether or not the information sought is of public interest or public concern (Legaspi vs. CSC, GR No. L-72119, May, 29, 1987). Remedy for Denial of the Right: The constitutional duty, not being discretionary, its performance is compellable by mandamus in a proper case (Chavez vs. PCGG, GR NO. 130716, Dec. 9, 1998).

Exceptions: [Restrictions on the Right to Information] – (Chaves vs. PCGG, GR No. 130716, Dec. 9, 1998)

a) Privileged information rooted on separation of powers;

i. closed door Cabinet meetings and ii. executive sessions of either house

of Congress,

iii. the internal deliberations of the Supreme Court

b) Military and diplomatic secrets; Information on inter-government

exchanges prior to the conclusion of treaties and executive agreements may be subject to reasonable safeguards for the sake of national interest

c) Information affecting national security;

d) Information on investigations of crimes prior to prosecution;

e) Trade and industrial secrets (Garcia vs. BOI, 177 SCRA 374).

i. Trade or industrial secrets (pursuant to the Intellectual Property Code [RA 8293] and

ii. banking transactions pursuant to RA 1405.

f) Other confidential matters – like:

i. The Ethical Standards Act (RA 6713) further prohibits public officials and employees from using or divulging ―confidential or classified information officially known to them by reason of their office and not made available to the public (Sec. 7[c]).

ii. Criminal records regarding children in conflict with the law under RA 9344.

Notes/Cases

The court said that ―except perhaps when it is

clear that the purpose of the examination is unlawful or sheer, idle curiosity, we do not believe it is the duty under the law of registration officers to concern themselves with motives, reasons and objects of the person seeking access to public records (Subido vs. Ozaeta, 80 Phil. 383).

However, The government agencies which have custody of the records have the authority to regulate access to the said records to the end that damage to, or loss of, public records may be avoided, undue interference with the duties of said agencies may be prevented, and more importantly, that the exercise of the same constitutional right by other persons shall be assured (Subido v Ozaeta. 80 Phil. 383, Legaspi v Civil Service Commission, EN BANC, L-72119, May 29, 1987).


Access to Court Records Court orders and decisions, pleadings and other documents filed by parties to a case need not be matters of public concern or interest, and access to public records may be restricted on showing of good cause (Hilado vs. Reyes, GR No. 163155, July 21, 2006).

The duty to disclose the information of public concern, and to afford access to public records, cannot be discretionary on the part of the part of said agencies (Legaspi vs. CSC).

Voting slips constituting the decision of the members of the MTRCB are neither private nor confidential because they are made in the exercise of official functions (Aquino-Sarmiento vs. Morato, 203 SCRA 515).

The constitutional guarantees of freedom of the press and the right to public information, in one hand, and the fundamental rights of the accused, on the other hand, along with the constitutional power of a court to control its proceedings in ensuring a fair and impartial trial race against another, jurisprudence tells us that the right of the accused must be preferred to win (In Re: Request for Live Radio-TV Coverage of the Trial in the Sandiganbayan of the Plunder Case of former President Joseph Estrada, AM No. 00-1-1-03-SC, June 29, 2001).

On MR, the Court allowed audio-visual

recording but not for real time or live broadcast.

The parties to a government contract cannot

stipulate that the terms thereof should be considered confidential and should be, open fro examination by the public (AKBAYAN vs. Aquino, GR No. 170516, July 16, 2008).

Section 8. The right of the people, including

those employed in the public and private

sectors, to form unions, associations, or

societies for purposes not contrary to law

shall not be abridged.

SCOPE: The right to form, or join, unions or associations, includes the right NOT to join or, if one is already a member, to disaffiliate from the association. The SC upheld the right of the employees on the electric cooperative to withdraw their membership from the cooperative in order to join a labor union

(Central Negros Electric Coop. vs. Sec. of Labor, 201 SCRA 584). However, even if the provision expressly guarantees the right to form unions in public and private sectors, members of the civil service may not declare a strike to enforce their economic demands (alliance of Government Workers vs. Ministry of Labor, 124 SCRA 1). The right to prohibit strikes or work stoppages by public employees was clearly recognized at common law. THE RIGHT IS NOT ABSOLUTE The right to association was not violated when political parties were prohibited from participating in the barangay elections in order to insure the non-partisanship of candidate; political neutrality is required to discharge the duties of barangay officials (Occena vs. COMELEC, 127 SCRA 404). SOME RRESTRICTIONS/MODIFICATION of the Right to Associate:

a) Compulsory membership of a lawyer in the IBP (In Re: Edillon, 84 SCRA 554).

b) Ineligibility of managerial employees to join, assist or form a labor union (art. 245, Labor Code).

c) Closed Shop Agreements. d) Members of religious sect prohibiting

membership in a union may not be compelled to join a union despite closed shop agreement (Victoriano vs. Elizalde Rope Workers Union, supra).

Section 9. Private property shall not be

taken for public use without just compensation.

NOTE: This is properly discussed in eminent domain topic under the inherent powers of the State.

Section 10. No law impairing the obligation

of contracts shall be passed.

Applicability The non-impairment clause is a limit on the exercise of legislative power and not of judicial or quasi-judicial power. The SEC, through the hearing panel that heard the petition for approval of the rehabilitation plan, was acting as a quasi-judicial body and thus, its order approving the plan cannot constitute an impairment of the right and freedom to contract (China Banking Corp. vs. ASB Holdings, GR No. 172192, Dec. 23, 2008).


IMPAIRMENT Anything that diminishes the efficacy of the contract. There is substantial impairment when the law changes the terms of a legal contract between the parties, either in the time or mode of performance, or imposes new conditions, or dispenses with those expressed, or authorizes for its satisfaction something different from that provided in its terms (Clements vs. Nolting, 42 Phil. 702).

The change must not only impair the obligation of the existing contract, but the impairment must be substantial and effect a change in the rights of the parties with reference to each other, and not with respect to non-parties (Phil. Rural Electric Coop. vs. Secretary of DILG, GR No. 143076, June 10, 2003).

LIMITATIONS

a) Police power – public welfare is superior to private rights. Municipal zoning ordinance is a police

measure and prevails over a restriction contained in the title to property (Ortigas vs. Feati Bank, 94 SCRA 533).

Regulation of rentals of dwelling units is an exercise of police power and an exception to the non-impairment clause (Canleon vs. Agus Dev. Corp., 207 SCRA 748).

An AO probiting the assignment of salaries of teachers to their creditors was not violative of the gurantee (Tiro vs. Hontanosas, 125 SCRA 697).

Existing share tenancy contracts conversion to leasehold tenancy through the exercise of police power (Ilusorio vs. CAR, 17 SCRA 25).

But the substitution of a mortgage with a security bond for the payment of a loan violates non-impairment clause (Ganzon vs. Inserto, 123 SCRA 713).

b) Eminent Domain - c) Taxation –

For both, see appropriate topics elsewhere.

NOTE: Franchises, privileges, licenses, etc., do not come within the context of the guarantee. They are subject to amendment, alteration or repeal by Congress when common good so requires (see sec. 11, Art. XII). It may be said that they are franchises, privileges and licenses are ―born with congenital defect‖. They are always subject to amendment or alteration pursuant to police power.

Section 11. Free access to the courts and

quasi-judicial bodies and adequate legal

assistance shall not be denied to any person by reason of poverty.

Note: This is a social justice provision, implemented by the Rules of Court allowing ―pauper suits‖. See also the Rule on Mandatory Continuing Legal Assistance. See RA 9999 –

Section 12. (1) Any person under

investigation for the commission of an offense

shall have the right to be informed of his right

to remain silent and to have competent and

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 waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat,

intimidation, or any other means which vitiate

the free will shall be used against him. Secret

detention places, solitary, incommunicado, or

other similar forms of detention are prohibited.

(3) Any confession or admission obtained

in violation of this or Section 17 hereof shall

be inadmissible in evidence against him.

(4) The law shall provide for penal and

civil sanctions for violations of this Section as

well as compensation to the rehabilitation of

victims of torture or similar practices, and

their families.

NOTE: SEC 12, Art embodies The Miranda Doctrine (Miranda vs. Arizona, 384 US 436). AVAILABILITY The rights guaranteed in sec. 12, exist only on custodial investigation or ―in-custody interrogation of accused persons‖. CUSTODIAL INVESTIGATION (CI) Any questioning initiated by law enforcement officer after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Under RA 7438, Custodial investigation shall include the practice of issuing invitation to a person


investigated in connection with an offense he is suspected to have committed. POLICE LINE-UP – [the suspect is identified by a witness from a group of persons gathered for that purpose]: It is not considered as part of any custodial inquest, because it is conducted before that stage of investigation is reached (P. vs. Bravo, GR No. 135562, Nov. 22, 1999). POLICE SHOW-UP- [the accused is brought face to face with the witness for identification]. The right to counsel accrues only after an investigation ceases to be a general inquiry of an unsolved crime and commences an interrogation aimed at a particular subject who has been taken into custody and to whom the police would propound questions (P. vs. Piedad, GR No. 131923, Dec. 5, 2002) HOWEVER, any identification of an un-counseled accused made in a police line-up or a show-up AFTER the start of custodial investigation is inadmissible in evidence against him (P. vs. Escordial, GR No. 138934-35, Jan. 16, 2002). INVESTIGATIONS NOT CONSIDERED CI a) Normal audit investigation (Navallo vs.

Sandiganbayan, 234 SCRA 175). b) Investigation conducted by an employer (Manuel

vs. N.C. Construction Supply, GR No. 127553, Nov. 28, 1997).

c) Investigation by the CSC involving fake civil service eligibility (Remolona vs. CSC, GR No. 137473, Aug. 2, 2001).

d) Counter-affidavit submitted during Preliminary Investigation is admissible in evidence. PI is not part of custodial investigation. The interrogation of the police, if any, would have ended at the time of the filing of the criminal case in court or in the prosecutor’s office (Ladiana vs. P., GR No. 144293, Dec. 24, 2002).

e) The signing of the accused of the booking sheet and the arrest report is not part of CI. The booking sheet is no more than a record of arrest and a statement on how the arrest was made (P. vs. Manzano, GR No. 86555, Nov. 16, 1993).

VIDEOTAPED CONFESSIONS The recording on video of the accused unburdening his guilt willingly, openly and publicly in the presence of newsmen does not form part of CI. It is not given to police officers but to media men in an attempt to solicit public sympathy and forgiveness (P. vs. Endino, GR No. 133026, Feb. 20, 2001).

However, courts are reminded that extreme caution must be taken in further admitting similar evidence.

Note: Spontaneous statements [may be considered as part of res gestae], or those not elicited through questioning by law enforcement officers, but given in an ordinary manner where the appellant verbally admitted the commission of an offense, are admissible (P. vs. Guillermo, GR No. 147786, Jan. 20, 2004). CAREFUL: The rights guaranteed by this provision refer to testimonial compulsion only (P. vs. Paynor, 261 SCRA 615). Available Rights Under The Miranda Doctrine: 1. To remain silent – there shall be no adverse

inference from his refusal to answer, as a rule.

2. To competent and independent counsel, preferably of his own choice at all stages of the investigation – if he cannot afford the services of counsel, he must be provided by the government with one.

Purpose: To avoid ―the evil of extorting from the very mouth of person undergoing interrogation for the commission of an offense the very evidence with which to prosecute and thereafter convict him‖ (P. vs. Bonola, GR No. 116394, June 19, 1997). When Available: The right to counsel attaches upon the start of the investigation – when the investigating officer starts to ask questions to elicit information or confessions from respondent (Gamboa vs. Cruz, 162 SCRA 642). Where Available: Right to counsel during custodial investigation still applies even if the accused Filipino citizen is abroad. The SC excluded the confession given by the accused without the assistance of counsel when he was interrogated by agents of the NBI in prison in Hongkong. The SC reasoned that a Filipino citizen should enjoy his constitutional rights even when he is abroad. (P. vs. Gomez, 270 SCRA 432, 444). The lawyer must ensure that throughout the investigation the client knows the nature of the questions by conferring with his client and halting the investigation should the need arise. It is his duty to inform the client that the right to be silent may be invoked at any time (P. vs. Sayaboc, GR No. 147201, Jan. 15, 2004).


However, the lawyer should never prevent the accused from freely and voluntarily telling the truth (P. vs. Enanoria, 209 SCRA 577).

Note: The desired role of lawyer in the process of CI is rendered meaningless if the lawyer merely gives perfunctory advice as opposed to meaningful advocacy of the rights of the person undergoing questioning. If the advice is so cursory as to be useless, the voluntariness is impaired (P. vs. Suela, GR No. 133570-71, Jan. 15, 2002). Thus, when the lawyer merely advise the appellant of his rights, then left, and then came back the next day to examine the signature and the statement of the appellant, the right to counsel was denied (P. vs. Lucero, 244 SCRA 425). A similar conclusion was reached where the lawyer left after about 30 minutes from the start of the investigation with the instructions that before the accused signs any extra-judicial statement, it should be shown to him first (P. vs. Morial, GR No. 129295, Aug. 15, 2001). NOT INDEPENDENT COUNSEL (P. vs. Bandula, 232 SCRA 565): a) Special; b) public or private prosecutor; c) counsel of the police; d) Municipal attorney, whose interest is admittedly

adverse to the accused; e) An applicant for NBI cannot be an independent

counsel for the accused in a CI conducted by the NBI (P. vs. Januario, 267 SCRA 608);

f) City Legal Counsel (P. vs. Espanola, infra); g) Or a municipal mayor (P. vs. Velarde, GR No.

139933, July 18, 2002). ―Preferably of his own choice‖ Does not mean the choice of a lawyer by a person under CI is exclusive as to preclude other equally competent and independent attorneys from handling the defense. Otherwise, the accused may impede, nay obstruct the progress of the investigation by simply selecting lawyer, who, for one reason or another, is not available to protect his interest (P. vs. Barasina, 229 SCRA 450). A lawyer provided by the investigators is deemed engaged by the accused when he does not raise any objection against the counsel’s appointment during the course of the investigation and the accused thereafter subscribes to the veracity of the statement before the swearing officer (P. vs. Jerez, GR No. 114385, Jan. 19, 1998). NOTE: The SC said that the right to counsel still applies in certain pre-trial proceedings that are

considered ―critical stages‖ in criminal process. CI before or after charges have been filed, and non-custodial interrogation after the accused has been formally charged, are considered ―critical pre-trail stages‖ in criminal process (P. vs. Espanola, supra). 3. To be informed of such rights –

The right to be informed carries with it the correlative obligation on the part of the investigator to explain, and contemplates effective communication which results in the subject understanding what is conveyed. The degree of explanation required will necessarily vary and depend on the education, intelligence, and other relevant personal circumstances of the person under CI (P. vs. Agustin, 240 SCRA 541). Thus, mere ceremonial and perfunctory

recital of an abstract constitutional principle is not enough (P. vs. Nicandro, 141 SCRA 289); or

Making the accused read his constitutional rights without any showing that the accused understood what he read, and that he understood the consequences of his waiver (P. vs. Canela, 208 SCRA 842).

4. Rights cannot be waived except in writing

and signed by the person in the presence of his counsel. Read sec. 2 (d), RA 7438 found in Criminal Law Reviewer.

5. No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used. Factors that may be considered to determine voluntariness of confession:

a) Evidence of compulsion, duress or violence;

b) Failure to complain to the officers who administered the oaths;

c) Failure to institute any criminal or administrative action against the alleged intimidators for maltreatment;

d) No marks of violence on their bodies; e) Failure to submit to submit to

examination to refutable physician (P. vs. Bagnate, GR No. 133685-86, May 20, 2004).

6. Prohibition secret detention places, etc.

Note: For Nos. 5 and 6, see Anti-Torture Act in Criminal Law Reviewer.


Two Kinds of Involuntary Confessions treated under this section:

a) Coerced confessions; and b) Uncounselled statements made without the

benefit of Miranda warning. NOTE: The alleged infringement of the constitutional rights of the accused during CI is relevant and material only where the extrajudicial confession or admission becomes the [sole] basis of conviction (NBI vs. Judge Reyes, AM – MTJ-97-1120, Feb. 21, 2000). WAIVER Must be in writing and made in the presence of counsel. The burden of proving that there was a valid waiver rests on the prosecution. The presumption that the official duty has been regularly performed cannot prevail over the presumption of innocence (P. vs. Jara, 144 SCRA 516). SCOPE OF WAIVER: The right to remain silent and the right to counsel may be waived, but NOT the rights to be informed of these rights and the right to counsel when making the waiver of the right to remain silent or to counsel. Guidelines for Arresting/Investigating Officers (P. vs. Mahinay, GR NO. 122485, Feb. 1, 1999): a) The person arrested, detained, invited or under

CI must be informed in a language known to and understood by him of the reason of the arrest and he must be shown the warrant of arrest, if any. Every other warning, information or communication must be in a language known to and understood by said person.

b) He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him.

c) He must be informed that he ahs the right to be assisted at all times and have the presence of an independent and competent lawyer, preferably of his own choice.

d) He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him, and that a lawyer may also be engaged by any person in his behalf, or may be appointed by the court upon petition of the person arrested or one acting in his behalf.

e) That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made.

f) The person arrested must be informed that, at any time, he has the right to communicate or confer by most expedient means, with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest, minister chosen by him or by anyone of his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished.

g) He must be informed that he has the right to waive any of the said rights provided it is made voluntarily, knowingly and intelligently, and ensure that he understood the same.

h) In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing and in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insists on his waiver and chooses to speak.

i) The person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned, with a warning that once he makes such indication, the police may not interrogate him if the same had not yet commenced, or the interrogation must cease if it has already begun.

j) The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements.

k) He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence.

NOTE: The Constitution demands a strict compliance with the requirements of secs. 12 and 17, of Art III, because a confession of guilt constitutes formidable evidence against the accused, on the principle that no one will knowingly, freely and deliberately admit authorship of a crime unless prompted by truth and conscience, particularly where the facts given could only have been known by the accused (P. vs. Fabro, GR NO. 95089, Aug.11, 1997). It is immaterial where the confession was obtained. Thus, confession given by the accused to NBI


agents who visited him in Hong Kong prison is inadmissible (P. vs. Gomez, 270 SCRA 432). However, the allegation of force, duress, undue influence or other forms of involuntariness in exacting such confession must be proved by clear and convincing evidence. FRUIT OF THE POISONOUS TREE When the primary source [―the tree‖] is shown to have been unlawfully obtained, any secondary or derivative evidence [―the fruit‖] derived from it is also inadmissible. Thus, the pillow and the T-shirt with alleged bloodstains – being evidence derived from the uncounselled confession – would likewise, be inadmissible (P. vs. Alicando, 251 SCRA 293). The receipt of property seized signed by the accused without the assistance of counsel and with the accused not having been first informed of his constitutional rights is totally inadmissible in evidence (P. vs. De Guzman, 194 SCRA 601). So also when the accused was made to sign a bond paper which was used to wrap the marijuana sticks before the same were submitted to the laboratory for examination, the same is in the nature of an uncounselled confession and therefore inadmissible (P. vs. Salazar, GR No. 98060, Jan. 27, 1997). CAREFUL: When the accused initialed the 10 peso bills, without assistance of counsel, found by the police tucked in his waist, it was held that neither his right against self-incrimination no his rights guaranteed by the Miranda doctrine was violated because his possession of the marked bills did not constitute a crime, the subject of the prosecution being the act of selling marijuana (P. vs. Linsangan, 195 SCRA 784). The signing of Booking Sheet and Arrest Report without the benefit of counsel does not violate the constitution because it is not an admission of guilt (P. vs. Morico, 246 SCRA 214). RE-ENACTMENT of the Crime When there is no showing that the accused, before the re-enactment was staged, was informed of his constitutional rights, and that he had validly waived such rights, the SC declined to uphold the admissibility of evidence relating to such re-enactment (P. vs. Luvendino, 211 SCRA 36) WAIVER OF THE EXCLUSIONARY RULE Failure of the accused to object to the offer of evidence, the uncounselled confession was admitted in evidence (P. vs. Samus, GR No. 13957-58, Sept. 17, 2002).

Section 13. All persons, except those

charged with offenses punishable by reclusion

perpetua, when evidence of guilt is strong,

shall, before conviction, be bailable by

sufficient sureties, or be released on

recognizance as may be provided by law. The

right to bail shall not be impaired even when

the privilege of the writ of habeas corpus is

suspended. Excessive bail shall not be

required.

Section 1, Rule 114, ROC. Bail defined. — Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance.

WHEN MAY BE INVOKED Any person under detention, even if no formal charges have yet been filed (Teehankee vs. Rovira, 75 Phil. 634). However, the right to bail can be availed only by a person who is in custody of the law or otherwise deprived of his liberty, and it would be premature, not to say incongruous, to file a petition for bail for someone whose freedom has yet to be curtailed (Cortes vs. Judge Catral, AM No. RTJ-97-1387). In the cases when bail is authorized, is should be granted before arraignment, otherwise, the accused may be precluded from filing motion to quash. Requiring an arraignment as a pre-requisite for the grant of bail is an error (Lavides vs. CA, GR No. 129670, Feb. 1, 2000). When Bail Be Denied: 1) When charged with an offense punishable by

reclusion perpetua (or higher) AND the evidence of guilt is strong.

Bail hearing for the determination whether

the evidence of guilt is strong is mandatory (Taborite vs. Sollesta, AM No. MTJ-02-1388, Aug. 12, 2003).

EVIDENCE OF GUILT IS STRONG WHEN Proof is evident or the presumption of guilt is strong. The test is not whether the evidence establishes guilt beyond reasonable doubt but whether it shows evident guilt or great presumption of guilt.

The court’s order granting or denying bail

must contain a summary of the evidence of


the prosecution (P. vs. Judge Cabral, GR No. 131909, Feb. 18, 1999).

When the accused charged with a crime punishable by reclusion perpetua is convicted by the trial court, bail (pending appeal) shall be denied (Fortes vs. Judge Guan, 223 SCRA 619).

2) Traditionally, bail is not available to the military

(Commendador vs. de Villa, 200 SCRA 80).

3) GR: An extraditee is not entitled to bail.

The constitutional provision on bail as well as sec. 4, Rule 114 applies only when a person has been arrested and detained for violation of Philippine laws. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal (Govt. of US vs. Judge Purganan, Sept. 24, 2002).

EXCEPTION: Accordingly, it was held that after a potential extraditee has been arrested and placed under custody of the law, bail may be applied for and granted as an exception, only upon clear and convincing showing that:

1. Once granted bail, the applicant will not be a

flight risk or danger to the community; and 2. There exists special, humanitarian and

compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein.

NOTE: When an alien is detained by the Bureau of Immigration for deportation pursuant to an order of deportation by the Deportation Board, the RTC, have no power to release such alien on bail even in habeas corpus proceedings because there is no law authorizing it (Go vs. Ramos, GR No. 167569, Sept. 4, 2009).

BAIL AS A MATTER OF RIGHT – see sec. 4, Rule 114, ROC. BAIL, WHEN DISCRETIONARY – see sec. 5, Rule 114, ROC. STANDARDS FOR FIXING BAIL – see sec. 6, Rule 114, ROC. EXCESSIVE BAIL The bail of P5.5 million recommended by the SolGen for the provisional liberty of the accused who had already been convicted by the trial court in an estafa case was held to be excessive. Bail is not

intended to assume the civil liability of the accused (Yap vs. CA). WAIVER OF THE RIGHT TO BAIL The right to bail is another constitutional right which can be waived. The failure of the accused to call the attention of the trial court to the unresolved petition for bail is deemed a waiver of the right. Furthermore, his conviction renders the petition moot and academic (P. vs. Manes, GR No. 122737, Feb. 17, 1999). Note: The suspension of the privilege of the writ of habeas corpus does not impair the right to bail (sec. 13, art. III). For more discussion the procedural aspects of the right to bail, see the rest of Rule 114, ROC in Remedial Law Reviewer.

Section 14. (1) No person shall be held to

answer for a criminal offense without due process of law.

(2) In all criminal prosecutions, the

accused shall be presumed innocent until the

contrary is proved, and shall enjoy the right

to be heard by himself and counsel, to be

informed of the nature and cause of the

accusation against him, to have a speedy,

impartial, and public trial, to meet the

witnesses face to face, and to have

compulsory process to secure the attendance

of witnesses and the production of evidence

in his behalf. However, after arraignment,

trial may proceed notwithstanding the

absence of the accused: Provided, that he has

been duly notified and his failure to appear is unjustifiable.

RIGHTS OF THE ACCUSED

A. CRIMINAL DUE PROCESS (Mejia vs.

Pamaran, 160 SCRA 457): 1) The accused has been heard in a court

of competent jurisdiction; 2) The accused is proceeded against the

orderly process of law; 3) The accused has been given notice and

the opportunity to be heard; and 4) The judgment rendered was within the

authority of a constitutional law.

The unreasonable delay in resolving a complaint by the Ombudsman violates due process and speedy trial (Roque vs.


Ombudsman, GR No. 129978, May 12, 1999).

Also unreasonable delay in the termination of preliminary investigation violates due process (Tatad vs. Sandiganbayan, 159 SCRA 70).

However, when the delay is due to complexity of the issues, or the petitioner’s own acts, there is no violation of due process and speedy trial (Santiago vs. Garchitorena, 228 SCRA 214).

Impartial Court/Court A critical component of due process of law is a hearing before an impartial and disinterested tribunal. But to disqualify a judge on the ground of bias and prejudice, the movant must prove such bias by clear and convincing evidence. The trial court cannot act as an advocate and at the same time a prosecutor. Thus, the act of cross-examining the accused ad the witnesses violated due process (Marcos vs. Sandiganbayan, supra). But the court may ask clarificatory questions to clear up dubious points and elicit relevant evidence (P. vs. Castillo, 289 SCRA 213). Prejudicial Publicity To Warrant a finding of prejudicial publicity, there must be allegation and proof that the judge have been unduly influenced, not simply that they might be, by the barrage of publicity (Martelino vs. Alejandro, GR No. L-20707, March 30, 1970). Right to a Hearing The accused were denied due process of law when the trial court convicted them (after having declared that they had waived their right to present evidence), but it was shown that there were deviations from the regular course of trial [petitioners were not directed to present evidence to prove their defenses nor dates set for that purpose, petitioners were not given the opportunity to present rebuttal evidence nor dates set for that purpose] and petitioners had not admitted the charges which would have justified the modification of the order of the trial (Alonte vs. Savellano, GR No. 131652, March 9, 1998). Note: The State and the offended party are also entitled to due process. A judgment of acquittal was vacated upon a finding by the SC that there was bias and partiality on the part of the judge and the prosecutor (Galman vs. Pamaran, 138 SCRA 274).

B. PRESUMPTION OF INNOCENCE Every circumstance favoring the innocence of the accused must be taken into account. The proof against him must survive the test of reason; the strongest suspicion must not be permitted to sway judgment (P. vs. Austria, 195 SCRA 700). The provision of an election statute which

disqualified from running for public office any person who has committed any act of disloyalty to the State ―provided that the filing of charges for the commission of such crimes before a civil court or military tribunal shall be prima facie evidence of such fact‖, was declared unconstitutional (Dumlao vs. COMELEC, 95 SCRA 392).

If the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused, and the other consistent with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient for conviction (P. vs. Martos, 211 SCRA 805

GR: The presumption that official duty was regularly performed cannot, by itself prevail over the constitutional presumption of innocence (P. vs. Briones, 266 SCRA 254). Exception: But where it is not the sole basis for conviction [presumption of regularity is taken together with other evidence], regularity in the performance of official function may prevail over presumption of innocence (P. vs. Acuram, 209 SCRA 281). Corporate entities have no personality to

invoke the constitutional presumption of innocence, but only and individual accused of a criminal offense (Feeder International Line vs. CA, 197 SCRA 842).

C. RIGHT TO BE HEARD BY HIMSELF AND

COUNSEL The right to counsel during trial is not subject to waiver because ―even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence (P. vs. Holgado, 86 Phil. 752). While the right to be represented by counsel during the trial is absolute, the option of the accused to hire one of his own choice is limited.


Such option cannot be used to sanction reprehensible dilatory tactics, to trifle with the Rules of Court, or to prejudice the equally important rights of the State and the offended party to speedy and adequate justice (P vs. Serzo, GR No. 118435, June 20, 1997). The long standing rule is that a client is bound by the mistakes of his lawyer, except when the negligence or incompetence is deemed so gross as to have prejudiced the constitutional right of the accused to be heard (Andrada vs. P., GR No. 135222, March 4, 2005).

D. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM Rationale: (P. vs. Valdesancho, GR No. 137051-52, may 30, 2001)

1) To furnish the accused with such a description of the charge against him as will enable him to prepare for his defense;

2) Avail himself of his conviction or acquittal for protection against further prosecution for the same cause; and

3) Inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction.

To arraign an accused while he is in a state of insanity will violate the right of the accused to be informed of the nature and cause of the accusation against him (P. vs. Alcalde, GR No. 139225-26, May 29, 2002). Requisites of a Valid Information/Complaint:

1) Must state the name of the accused; 2) The designation of the offense given by the

statute; 3) Statements of the acts or omission so

complained of as constituting the offense; 4) Name of the offended party; 5) The approximate time and date of the

commission of the offense; and 6) The place where the offense had been

committed. Every element of the offense must be alleged in

the complaint or information, because the accused is presumed to have no independent knowledge of the facts that constitute he offense charged (P. vs. Tabion, GR No. 132715, Oct. 20, 1999).

Where no allegation of conspiracy in the information, the court’s finding of conspiracy

violates constitutional requirements (P. vs. Quitong, GR No. 121502, July 10, 1998).

The accused could be convicted only of the

crime alleged or necessarily included I the allegations in the information (P. vs. Legaspi, 246 SCRA 206).

While the court can hold a joint trial of two or more criminal cases and can render a consolidated decision, it cannot convict the accused of the complex crime constitutive of the various crimes in the two informations (P. vs. Vera, GR No. 121462-63, June 9, 1999). VOID FOR VAGUENESS RULE Where the statute itself is couched is such indefinite language that it is not possible for men of ordinary intelligence to determine therefrom what acts or omissions are punished, there is violation of the right to be informed of the nature and cause of accusation and due process (Estrada vs. Sandiganbayan, GR No. 148560, Nov. 19, 2001). Three distinct considerations for the vagueness doctrine. 1) First, the doctrine is designed to ensure that

individuals are properly warned ex ante of the criminal consequences of their conduct. This ―fair notice‖ rationale was articulated in the case of U. S. vs. Harris, 347 U. S. 612 (1954). In said case, the court said ―the constitutional requirement of definiteness is violated by a statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed (forbidden).

2) Second, the doctrine is intended to prevent arbitrary and discriminatory law enforcement. (Kolender vs Lawson, 461 US 352 (1983). Invariably vague laws are standardless and as such, they afford too great opportunities for criminal enforcement to be left to the unfettered discretion of police officers and prosecutors.

3) Third, vague laws fail to provide sufficient guidance to judges who are charged with interpreting statutes. Where a statute is too vague to provide sufficient guidance, the judiciary is placed in a position of usurping the proper function of the legislative by making the law rather than interpreting it.

Note: Void for vagueness doctrine is not applied where ambiguity of statute is not latent and the legislative intention is discoverable with the aid of canons of construction (Estrada vs. Sandiganbayan, supra).


NO WAIVER The right to be informed of the nature and cause of accusation cannot be waived by reason of public policy. It is imperative that the complaint/information complete its objectives (P. vs. Flores, GR No. 128823-24, Dec. 27, 2002). The accused may be convicted of as many offenses charged in the information and proved during the trial, where he failed to object to such duplicitous information during the arraignment (Abalos vs. P., GR No. 136994, Sept. 17, 2002). An information which lacks material allegations, may still sustain a conviction when the accused fails to object to its sufficiency during the trial and the deficiency is cured by competent evidence presented (P. vs. Palarca, GR NO. 146020, May 29, 2002). COMMENT: Be careful with this case, this is, rather, unusual. It will apply only under peculiar circumstances. It applies only as a matter of exception. E. RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC

TRIAL. A trial free from vexatious, capricious and oppressive delays. But justice and fairness, not speed, are the objectives. (Acevedo vs. Sarmiento, 36 SCRA 247).

Impartial Trial: The accused is entitled to cold neutrality of an impartial judge. Judgment of conviction was reversed upon showing that the trial judge was biased because of the appearance and criminal record of the accused (P. vs. Opida, 142 SCRA 295). The right of an accused to a fair trial is not incompatible to a free press, that pervasive publicity is not per se prejudicial to the right of an accused to a fair trial, and that there must be allegation and proof of the impaired capacity of a judge to render a bias-free decision. mere fear of possible undue influence is not tantamount to actual prejudice resulting ins the deprivation of the right to a fair trial (Re: Petition for Radio and TV Coverage of the Multiple Murder Cases Against Governor Ampatutan, AM No. 10-11-5-SC, June 14, 2011).

The Right to a Fair Trial; the purpose of the rule barring trial or sentence of an insane person: The rule barring trial or sentence of an insane person is for the protection of the accused, rather than of the public. It is inhuman to require an accused disabled by God to make a just defense for his life or liberty. To put a legally incompetent

person on trial or to convict and sentence him is a violation of the constitutional rights to a fair trial

See also due process topic.

Public Trial: An accused has a right to a public trial, but it is a right that belongs to him more than anyone else, where life or liberty can be held critically in balance. A public trial aims to ensure that he is fairly dealt with and would not be unjustly condemned and that his rights are not compromised in secret conclaves of long ago (Request fro Live TV Coverage of Trial of former President Estrada, supra).

F. RIGHT TO FACE THE WITNESS FACE TO FACE. [aka the Right of Confrontation] Two-Fold Purpose of this Right:

1. To afford the accused an opportunity to test the testimony of the witness by cross-examination; and

2. To allow the judge to observe the deportment of the witness (US vs. Javier, GR No. 12990, Jan. 21, 1918).

Relate this to the Hearsay Rule.

The testimony of a witness who has not submitted himself to cross examination is not admissible in evidence. Also affidavits of witnesses not presented during trial, and thus not subjected to cross-examination are inadmissible (P. vs. Quidato, GR No. 117401, Oct. 1, 1998). If cross-examination actually commenced, but for lack of material time, was not completed, and the witness in the meantime died before cross-examination could be resumed, so much of the testimony as had already been covered by cross-examination is admissible (P. vs. Seneris, GR No. L-49933, Aug. 6, 1980). However, the right to cross-examination may be waived.

Connect also to the Rule on Examination of a Child Witness - Alternative ways to testify.

G. THE RIGHT TO COMPULSORY PROCESS TO SECURE THE ATTENDANCE OF WITNESSES AND PRODUCTION OF EVIDENCE.


See subpoena duces tecum and ad testificandum in Remedial Law Reviewer.

TRIAL IN ABSENTIA Whenever the accused has been arraigned, notified of date/s of hearing, and his absence is unjustified, trial shall proceed despite the absence of the accused. Purpose: To speed up the disposition of criminal cases, trial of which could, in the past, be indefinitely deferred, and many times completely abandoned, because of the defendant’s escape (P. vs. Agbulos, 222 SCRA 196). Note: Presence of the accused is mandatory:

1) During arraignment; 2) During trial for identification; 3) During promulgation of sentence, except for

light offenses; An accused who jumps bail, escapes from confinement, or flees to a foreign country, loses standing in court, and unless he surrenders or submits himself to the jurisdiction of the court, he is deemed to have waived his right to seek relief from the court, including the right to appeal his conviction (P vs. Mapalao, 197 SCRA 79). After trial in absentia, the court can render judgment in the case and promulgation can be made by simply recording the judgment in the criminal docket with a copy thereof served upon his counsel, provided that notice requiring him to be present at the promulgation of judgment is served through his bondsmen or warden and counsel (P. vs. Acabal, GR No. 103604-05, Sept. 23, 1993). NOTE: The following is a pertinent provision under Rules of Procedure for Environmental Cases [RPEC], regarding the grant of Bail, Arraignment and Trial in absentia.

Section 2, Rule 14, RPEC. Duties of the court. - Before granting the application for bail, the judge must read the information in a language known to and understood by the accused and require the accused to sign a written undertaking, as follows:

(a) To appear before the court that issued the warrant of arrest for arraignment purposes on the date scheduled, and if the accused fails to appear without justification on the date of arraignment, accused waives the reading of the information and authorizes the court to enter a plea of not guilty on behalf of the accused and to set the case for trial;

(b) To appear whenever required by the court where the case is pending; and (c) To waive the right of the accused to be present at the trial, and upon failure of the accused to appear without justification and despite due notice, the trial may proceed in absentia.

COMMENT: This is a very good rule. This is the answer of the previous dilemma trial judges usually encountered. You see, before, the accused may be allowed to post bail upon being considered in custody of the law even prior to the filing of a complaint/information in court. The problem, is, hardened criminals, once granted bail, would no longer appear for arraignment, thus, there can be no trial in absentia that could be had. This was the precise reason that some judges would require the arraignment of the accused prior to the grant of application for bail – a procedure that was invalidated by the SC. Note, however that this new rule does not apply to all cases, as it applies only to environmental cases. It is hoped that it should be applied to all cases as well.

Section 15. The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion, when the public safety requires it.

WRIT OF HABEAS CORPUS (Amparo Libertad) It is a writ directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place, with the day and the cause of his caption and detention, to do, to submit to, and receive whatsoever the court or judge awarding the writ shall consider in his behalf. WHEN AVAILED OF: (as consequence of a judicial proceeding) [Feria vs. CA, GR No. 122954, Feb. 15, 2000). 1. There has been a deprivation of a constitutional

right resulting in the restraint of a person; 2. The court has no jurisdiction to impose the

sentence; 3. An excessive penalty has been imposed, as

such sentence is void as to the excess; or 4. When the law is amended as when the penalty

is lowered. 5. It also extends to cases by which rightful

custody of any person is withheld from the person entitled thereto (Tijing vs. CA, GR No. 125901, March 8, 2001).

6. The writ was issued on the ground that moral restraint was being exerted by the employer to


prevent the housemaid from leaving (Caunca vs. Salazar, 82 Phil. 851).

WHEN NOT AVAILABLE 1. The person restrained of his liberty is in custody

of an officer under a process issued by the court of competent jurisdiction.

Even if the detention is, at its inception,

illegal, supervening events, such as the issuance of a judicial process, may prevent the discharge of the detained person (Jackson vs. Macalino, GR No. 139255, Nov. 24, 2003).

2. A person detained applied for and was released

on bail, the petition for habeas corpus became moot and academic is so far as at questioned the legality of arrest (Magno vs. CA, 212 SCRA 229).

3. Enforcement of marital rights, including the living in the conjugal dwelling cannot be enforced by the writ (Ilusorio vs Bildner, GR No. 139789, May 12, 2000).

4. The fact that the preliminary investigation was invalid and the offense prescribed do not constitute valid grounds for the issuance of the writ. The remedy is to file a motion to quash the warrant and a motion to quash the information (Paredes vs. Sandiganbayan, 193 SCRA 464).

Note: for the grounds for suspension, duration of the suspension, the authority of congress and the power of the SC relative to this topic. See sec. 18, Art. VII. For Procedural aspect, see Rule 102, Rules of Court in Remedial Law Reviewer.

Writ of Amparo [AM No. 07-9-12-SC] Is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. The writ shall cover extralegal killings and enforced disappearances or threats thereof. Basis: Art. VIII, Sec. 5 [5], 1987 Const. Scope: The right to security of person is a guarantee of bodily and psychological integrity or security in the amparo context, it is more correct to say that the ―right to security‖ is actually the ―freedom from threat‖. Viewed in this light, the ―threatened with violation‖ is a form of violation of the right to security

mentioned in the earlier part of the provision (Reyes vs. Gonzales, GR No. 182161, Dec. 3, 2009). Nature: The remedy of the writ of amparo provided rapid judicial relief as it partakes of a summary proceeding that requires only substantial evidence to make the appropriated reliefs available to the petitioner. It is not an action to determine administrative responsibility (Razon, Jr. vs. Tagitis, GR No. 182498, Dec. 3, 2009). There is no determination of civil or criminal liability in amparo and habeas data proceedings, courts can only go as far as ascertaining responsibility or accountability for the enforced disappearance or extrajudicial killing. Such determination is for the purpose of imposing the appropriate remedies to address the disappearance (In the Matter of the Petition for the Writ of Amparo and Habeas Data in favor of Noriel Rodriguez vs. Arroyo, et al., GR No. 191805 & 193160, Nov. 15, 2011). Concept of enforced disappearances and extrajudicial killings Although the writ specifically covers enforced disappearances, this concept is neither defined nor penalized in this jurisdiction. As the law now stands, extrajudicial killings and enforced disappearances are not crimes penalized separately from the component criminal acts undertaken to carry out these killings and enforced disappearances and are now penalized under the RPC and special laws (Razon vs. Tagitis, supra). Admissibility of Hearsay Evidence The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other words, we reduce our rules to the most basic test of reason, Thus, even hearsay evidence can be admitted if it satisfies this basic minimum test (Ibid). Command Responsibility in Amparo Proceedings The President may be held responsible or accountable for extrajudicial killings and enforced disappearances. The President, being the commander-in-chief of all the armed forces, necessarily possesses control over the military that qualifies him as a superior within the purview of the command responsibility doctrine (In the Matter of the Petition for the Writ of Amparo and Habeas Data in favor of Noriel Rodriguez vs. Arroyo, et al., supra)


Elements for someone to be held liable under the doctrine of command responsibility:

1. existence of a superior-subordinate relationship between the accused as the superior and the perpetrator of the crime as his subordinate;

2. superior knew or had reason to know that the crime was about to be or had been committed; and

3. superior failed to take the necessary and reasonable measures to prevent the criminal acts or punish the perpetrators thereof.

The Writ of Habeas Data [AM No. 08-1-16-SC]

The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party. Purpose: It is intended to insure the human right to privacy by requiring the respondent to produce the necessary information to locate the missing person or such data about him that have been gathered in secret to support the suspicion that he has been taken into custody in violation of his constitutional rights or, worse, has been salvaged without the benefit of a lawful trial. The writ may also be sought to secure destruction of such secret information to privacy to justify summary action against him by the government or any private entity (Cruz, 2007). The Writ of Kalikasan

Section 1, Rule 7, RPEC. Nature of the writ. - The writ is a remedy available to a natural or juridical person, entity authorized by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more cities or provinces.

Section 16. All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies.

Relate this topic to the right of the accused to speedy trial. It should be noticed that the right provided under this section is broader than the right of the accused to a speedy trial which particularly refers to criminal proceedings. The essence is, however, the same.

The right is violated only when the proceedings are attended by vexatious, capricious and oppressive delays, or when unjustified postponement of the trial are asked and secured, or when without cause or justifiable motive a long period of time is allowed to elapse without the party having his case tried. A mathematical reckoning of the time involved is not sufficient (Binay vs. Sandiganbayan, GR No. 120281-83, Oct. 1, 1999). SCOPE This right extends to all citizens, including the military, and covers the period before, and after the trial, affording broader protection than the right to speedy trial (Abadia vs. CA, 236 SCRA 676). WAIVER Failure to seasonably assert their constitutional right to speedy disposition of their cases is deemed to be a waiver of the right (Bernat vs. Sandiganbayan, GR No. 136264, May 20, 2004).

Section 17. No person shall be compelled to

be a witness against himself.

THE RIGHT AGAINST SELF-INCRIMINATION (Availability) Available not only in criminal prosecutions but also in all other government proceedings, including civil actions and administrative or legislative investigations. It is available not only to the accused but also any witness to whom a question calling for an incriminating answer is addressed. Note: In criminal prosecution, the accused may not be compelled to take the witness stand, on the reasonable assumption that the purpose of the interrogation will be to incriminate him (Chavez, VA, 24 SCRA 663).

If he voluntarily takes the witness stand, he may be cross-examined and may not refuse to answer incriminating questions directly relevant to the present criminal action. He may refuse to answer, however, incriminatory questions other than the crime he stands charged.


With respect to ordinary witnesses, he may object only at the very time the incriminating question is asked.

When is a question incriminating: A question would have a tendency to incriminate if it tends to elicit, even just one, of the elements of a criminal act (Bernas, 2011). SCOPE The kernel of the right is NOT against all compulsion, but testimonial compulsion only. The right is simply against the process of extracting from the lips of the accused an admission of his guilt. It does not apply where the evidence is but an object evidence (P. vs. Malimit, 264 SCRA 167). THUS, BODY CAN BE SUBMITTED TO EXAMINATION (NO VIOLATION AGAINST SELF INCRIMINATION):

1. Fingerprint; 2. Photograph [P. vs. Gallarde, GR No.

133025, Feb. 17, 2000]; 3. Measurement; 4. Stand; 5. Assume position; 6. Blood examination; 7. Pregnancy test [Villaflor vs. Summers, 41

Phil. 62]; 8. Wear particular dress [P. vs. Otadora, 86

Phil. 244]; 9. Drug test (sec. 36, RA 9165); 10. Alcoholic breath; 11. DNA; 12. Hair samples. (P. vs. Rondero, L-125687,

Dec. 9, 1999); 13. Paraffin test; 14. Ultra-violet examination; 15. Medical examination.

Drug, Alcohol, and Blood Tests The constitutional viability of the mandatory, random, and suspicionless drug testing for students emanates primarily from the waiver of their right to privacy when they seek entry to the school, and from their voluntary submitting their persons to the [special] parental authority of school authorities. However, there is no valid justification for the persons accused of crimes punishable with at least 6 years and 1 day as they are singled out and impleaded against their will. The operative concepts in the mandatory drug testing is that it is random and suspiscionless. Thus, to impose mandatory drug testing on the accused, is a blatant attempt to harness a medical test as a tool for criminal prosecution. (ATTY.MANUEL J. LASERNA,JR., vs. DANGEROUS DRUGS BOARD and PHILIPPINE

DRUG ENFORCEMENT AGENCY, G.R. No. 158633,November 3, 2008) GR: Accused cannot be required to produce documents that may incriminate him. Exception: When there is a specific provision of law directing a person to produce such document even if it may incriminate him. Example:

1. the Statement of Assets and Liabilities of Public officers;

2. books of accounts of corporations under police and taxing powers of the state.

3. Where government officers are required to produce official documents or public records which are in their possession or custody by reason of his functions (Almonte vs. Vasquez).

Some examples of incriminating compulsions:

1. Production of handwriting specimen (Beltran vs. Samson, 53 Phil. 570).

2. Forced re-enactment (P. vs. Olvis); 3. Signing a receipt of the seized articles.

WAIVER The right against self-incrimination may be waived either directly or impliedly by failure to invoke it, provided that the waiver is certain and unequivocal and intelligently made.

Section 18. (1) No person shall be detained

solely by reason of his political beliefs and aspirations.

(2) No involuntary servitude in any

form shall exist except as a punishment for a

crime whereof the party shall have been duly

convicted.

Involuntary Servitude It is the condition where one is compelled by force, coercion, or imprisonment, and against his will, to labor for another, whether he is paid or not. EXCEPTIONS to the prohibition against involuntary servitude:

1. Punishment for a crime whereof one has been duly convicted;

2. Service in defense of State (sec. 4, Art. II); 3. Naval (Merchant marine) enlistment

(Robertson vs. Baldwin, 165 US 75); 4. Posse comitatus (US vs. Pompeya, 31 Phil.

245); 5. Return to Work Order in industries affected

with public interest;


6. Patria potestas (art. 211, Family Code). Slavery The civil relation wherein one man has absolute power over the life, fortune and liberty of another. Peonage A condition of enforced servitude by which the servitor is restrained on his liberty and compelled to labor in liquidation of some debt or obligation, real or pretended, against his will. Note: The provision on the right against involuntary servitude is reinforced by art. 272, RPC.

Art. 272. Slavery. — The penalty of prision mayor and a fine of not exceeding 10,000 pesos shall be imposed upon anyone who shall purchase, sell, kidnap or detain a human being for the purpose of enslaving him. If the crime be committed for the purpose of assigning the offended party to some immoral traffic, the penalty shall be imposed in its maximum period.

See also the Anti-Trafficking in Persons Act in Criminal Law Reviewer.

Section 19. (1) Excessive fines shall not be

imposed, nor cruel, degrading or inhuman

punishment inflicted. Neither shall death

penalty be imposed, unless, for compelling

reasons involving heinous crimes, the

Congress hereafter provides for it. Any death

penalty already imposed shall be reduced to reclusion perpetua.

(2) The employment of physical,

psychological, or degrading punishment

against any prisoner or detainee or the use of

substandard or inadequate penal facilities

under subhuman conditions shall be dealt with by law.

CRUEL AND DEGRADING PUNISHMENT Settled is the rule that punishment authorized by statute is not cruel or degrading unless it is flagrantly and plainly oppressive or wholly disproportionate to the nature of the offense as to shock the moral sense of the community (P. vs. Estiota, 93 Phil. 647). Fine, when Excessive:

A fine is considered excessive when it is clearly shown that the nature of the violation compared with the fine is disproportionate, or if it exceeds the utmost limit of the punishment which the vindication of the law demands (US vs. Valera, GR No. L-8956, Feb. 4, 1914). Mere fines and imprisonment are not violative. To be cruel and unusual or excessive, the penalty must be inhuman and barbarous and shocking to the conscience (P. vs. Dionisio, GR No. L-25513, March 27, 1968). NOTE: Death penalty is currently prohibited by RA 9346.

Section 20. No person shall be imprisoned for debt or non-payment of a poll tax.

Debt: Any civil obligation arising from a contract. Poll Tax: A specific sum of money levied upon any person belonging to a certain class without regard to property or occupation (like, a Community Tax). The trial court’s order for the arrest of the

defendant for failure, owing to his insolvency, to pay past and present support was held invalid by the SC (Sura vs. Martin, 26 SCRA 286).

A warrant of arrest on the strength of a criminal complaint charging the accused with ―willful non-payment of debt‖ was annulled by the SC (Serafin vs. Lindayag, 67 SCRA 166).

While the debtor cannot be imprisoned for failure to pay his debt, he can be validly punished in a criminal action if he contracted his debt through fraud, as his responsibility arises not from the contract of loan, but from the commission of the crime (Lozano vs. Martinez, 146, SCRA 323).

Violation of trust receipt agreement is punishable as estafa which is not an offense against property, but against public order. The Trust Receipt Law [BP 115] is a valid exercise of police power. It does not violate this provision because the law does not seek to enforce a loan but to punish dishonesty and abuse of confidence in the handling of money or goods to the prejudice of another (P. vs. Judge Nitafan, 207 SCRA 726).

Administrative sanction for failure to pay just debt does not [indirectly] violate sec. 20, Art. III: Sec. 46, Chap. 7, Title I, Book V of the Administrative Code of 1987 (E. O. No. 292), provides: Discipline; General Provisions; (b) The


following shall be grounds for disciplinary action: (22) Willful failure to pay just debts or willful failure to pay taxes due to the government The SC in effect held that the suspension of a civil servant for failure to pay a just and admitted debt is an administrative sanction and does not violate the prohibition against imprisonment for debt (Flores vs. Tatad (96 SCRA 676). Note: The trial court may NOT lawfully issue an

order directing the arrest and imprisonment of a

defendant for contempt of court for failure to satisfy

a judgment for support on the ground of insolvency.

Such order is unconstitutional because it amounts to

imprisonment for failure to pay a debt (Sura vs.

Martin, Sr., L-25091, Nov. 29, 1968).

Section 21. No person shall be twice put in

jeopardy of punishment for the same offense.

If an act is punished by a law and an

ordinance, conviction or acquittal under either

shall constitute a bar to another prosecution for the same act.

DOUBLE JEOPARDY (DJ) provides 3 related protections: a) Against second prosecution for the same

offense after acquittal; b) Against second prosecution for the same

offense after conviction; or c) Against multiple punishments for the same

offense (P. vs. Dela Torre, GR No. 137953-58, March 11, 2002).

Requisites:[DJ for the same offense] 1) Valid complaint or information –

No DJ in Preliminary Investigation (Icasiano

vs. Sandiganbayan, 209 SCRA 377). 2) Filed before a competent court –

Subsequent filing of the case with a court of proper jurisdiction, after it was erroneously filed with a court, without territorial jurisdiction over the place where the crime was committed, will not constitute DJ ((P. vs. Puno,208 SCRA 550). Where the criminal case was dismissed by the RTC so that the appropriate information may be filed with the Sandiganbayan which had jurisdiction, the defense of DJ is not available (Cunanan vs. Arceo, 242 SCRA 88).

3) To which the defendant had pleaded –

The grant of motion to quash may be appealed by the prosecution, without placing the accused under DJ, because the accused has not been placed in [first] jeopardy as there was yet been arraigned (sec. 9, Rule 117, ROC).

4) Defendant was previously acquitted or convicted, or the case dismissed or otherwise terminated without his express consent – The mere filing of two informations or

complaints charging the same offense does not yet afford the accused in those cases the occasion to complain the he is being placed in jeopardy for the same offense, for the simple reason that the primary basis of the defense of DJ is that the accused has already been convicted or acquitted in the first case, or the same has been terminated without his consent (P. vs. Miraflores, 115 SCRA 586).

There is no DJ where the accused was sentenced on plea-bargaining approved by the court without the consent of the fiscal (P. vs. Judge Villarama, 210 SCRA 246).

Neither will DJ attach where the criminal case was mistakenly cancelled and removed from the court calendar for that day (Gorion vs. RTC of Cebu, 213 SCRA 138).

The retaking of testimony, made necessary because the TSN was incomplete and a new judge had taken over the case, does not give rise to DJ (Guerrero vs. CA).

Withdrawal of appeal lies in the sound discretion of the Court. Thus, where motion of the petitioner to withdraw his appeal from the decision of the MTC [which imposed only a fine] was denied, his payment of the fine did not make the decision of the MTC final and executory. Accordingly, there is no DJ by the decision of the RTC (Teodoro vs. CA, 258 SCRA 603).

The promulgation of only part of the decision – the modified civil indemnity liability – is not a bar to the promulgation of the other part, the imposition of the criminal accountability (Cuizon vs. CA, GR NO. 128540, April 15, 1998).

Dismissal of Action May Either –

a) Permanent dismissal i. Termination of the case by

conviction or acquittal;


ii. Failure to prosecute; iii. Violation of right to speedy trial or

speedy disposition of cases.

b) Provisional dismissal – i. Dismissal without prejudice to

reinstatement thereof before order of dismissal becomes final and executory; or

ii. Refilling of new information within the periods allowed by the Rules of Court.

Note: For revival of criminal cases provisionally dismissed, see sec. 8, Rule 117, ROC. EXPRESS CONSENT That which is directly given, either viva voce or in writing, a positive, direct, unequivocal consent requiring no inference or implication so supply its meaning (P. vs. Judge Vergara, 221 SCRA 560). Dismissal Action GR: When the dismissal is made upon the motion of the accused, there is no DJ. Exceptions: a) When the ground of the motion to dismiss is

insufficiency of evidence. Thus, the grant of demurrer to evidence is equivalent to an acquittal, and any further prosecution of the accused will violate the prohibition against DJ (Sanvicente vs. P., GR No. 132801, Nov. 28, 2002).

b) When there is violation of the right to speedy trial (Esmena vs. Pogoy, 102 SCRA 861).

APPEAL BY THE PROSECUTION GR: The rule on DJ prohibits the State from appealing of filing a petition for review of a judgment of acquittal that was based on the merits of the case. Exception: But where the prosecution is denied due process, such denial results in lack or excess of jurisdiction, and thus, appeal [certiorari], may be allowed (P. vs. Navarro, 63 SCRA 264). No DJ Under the Following:

i. Where the case is deprived of a fair opportunity to prosecute and prove its case (Gorion vs. RTC of Cebu, supra);

ii. Where the dismissal is purely capricious or devoid of reason (P. vs. Gomez, 20 SCRA 293);

iii. Where there is lack of notice or opportunity to be heard (Portugal vs. Reantaso, 167 SCRA 712);

iv. Where the accused has waived or is stopped from invoking his right against DJ (P. vs. Obsania, 23 SCRA 1249);

v. Or dismissal or acquittal is made with grave abuse of discretion (P. vs. Pablo, 98 SCRA 289);

vi. Where there is finding of mistrial (Galman vs. Sandiganbayan, supra);

vii. The dismissal is made before arraignment (Martinez vs. CA, 237 SCRA 575);

viii. An accused who had been previously discharged [amounts to acquittal] as a state witness but refused or failed to testify without justifiable reason, may be re-instated as co-accused (Bogo-Medellin Milling vs. Son, 209 SCRA 329).

Motion for Reconsideration and DJ As a rule, a judgment of acquittal cannot be reconsidered because it places the accused under DJ. There is reason for this provision of the Constitution. In criminal cases, the full power of the State is ranged against the accused. If there is no limit to attempts to prosecute the accused for the same offense after he has been acquitted, the infinite power and capacity of the State for a sustained and repeated litigation would eventually overwhelm the accused in terms of resources, stamina, and the will to fight. Exception: On exceptional cases as when the court absolved the accused gravely abused its discretion, resulting in loss of jurisdiction, or when a mistrial has occurred, the State may assail the same via Rule 65 (Lejano vs. P., GR No. 176389, Jan. 18, 2011). CRIMES COVERED

i. Identical offense; ii. Any attempt to commit the same or

frustration thereof; iii. Any offense which necessarily includes or is

necessarily included in the offense charged in the original complaint/information.

DJ for Same Act Note: When the act is punished by a national law and an ordinance, the conviction or acquittal under either shall constitute a bar to another prosecution arising from the same act/omission (P. vs. Relova, 148 SCRA 292).

DJ for the same act does not require prior conviction or acquittal or dismissal of the first information, as long as the first jeopardy has already attached (Ibid).

DOCTRINE OF SUPERVENING EVENT The accused may still be prosecuted for another offense if a subsequent development changes the character of the first indictment under which he may have already been charged or convicted. (see sec. 7, Rule 117, ROC).


Section 22. No ex post facto law or bill of

attainder shall be enacted.

EX POST FACTO LAW An act which when committed was not a crime, cannot be made so by statute without violating the constitutional inhibition as to ex post facto laws. An ex post facto law is one which: [US vs. Diaz-Conde, GR No. 18208, Feb. 14, 1922] 1. Makes criminal an act done before the

passage of the law which was innocent when done;

2. Aggravates a crime, or makes greater than it was, when committed;

3. Changes the punishment and inflicts a greater punishment than the law annexed to the crime when committed;

4. Alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the law required at the time of the commission of the offense;

5. Assumes to regulate civil rights and remedies only, but in effect imposing a penalty or deprivation of a right for something which when done was lawful; and

6. Deprives a person accused of a crime of some lawful protection to which he has become entitled, such as protection of a former conviction or acquittal, or a proclamation of amnesty.

CHARACTERISTICS: a) Refers to criminal matters [not mere

procedural laws]; b) It is retroactive in application; c) It works to the prejudice to the accused.

The judge cannot motu proprio, initiate and subsequently dismiss a criminal information without ay motion to that effect being filed by the accused based on the alleged violation of the latter’s right against ex post facto law and double jeopardy (P. vs. Judge Nitafan, GR No. 107964-66, Feb. 1, 1999).

Note: A law can never be an ex post facto as long as it operates prospectively since its strictures would cover only offenses committed after and not before its enactment.

BILL OF ATTAINDER It is a legislative act which inflicts punishment without trial. In history, it is an act of the Parliament in England declaring that the blood of certain person/s has/have been attainted (with evil) and lacks heritable character.

CHARACTERISTICS: It substitutes legislative fiat for a judicial determination of guilt. It only applies when a statute applies either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment without judicial trial.

The provision prevents the legislature from assuming judicial magistracy. It is thus a general safeguard against legislative exercise of the judicial function or more simply – trial by legislature.

ARTICLE IV CITIZENSHIP

CITIZENSHIP Membership in a political community which is personal and more or less permanent in character. NATIONALITY Membership in any class of form of political community. Thus, nationals may be citizens [if members of a democratic community] or subjects [if members of a monarchial community]. Nationality does not necessarily include the right of privilege of exercising civil or political rights. USUAL MODES OF ACQUIRING CITIZENSHIP: a) By birth

i. Jus sanguinis – by blood ii. Jus soli – place of birth

b) By naturalization

c) By marriage Birth As A Mode And How Applied in the Philippines: a) Before the adoption of 1935 Constitution.

i. Jus Sanguinis – all inhabitants of the islands who where Spanish subjects on April 11, 1899, and residing in the islands who did not declare their intention of preserving Spanish nationality between said date and October 11, 1900, were declared citizens of the Philippines (sec. 4, Philippine Bill of 1902; Jones Law of 1916), and their children born after April 11, 1899).

ii. Jus Soli – as held in Roa vs. Collector of Customs, 25 Phil 315, until abandoned with finality in Teotimo Rodriguez Tio Tiam vs. Republic, 101 Phil. 195. Those declared Filipino citizens by the courts as such today not because of the application of jus soli, but


principally because of doctrine of res judicata.

b) After the adoption of the 1935 Constitution –

ONLY the jus sanguinis principle is applied. Note: citizenship is NOT subject to collateral attack but only through a direct proceeding (Co vs. HRET, 199 SCRA 692). The power of the HRET does not carry with it the authority to delve into the legality of the judgment of naturalization. to rule otherwise would operate as a collateral attack of the citizenship (Vilando vs. HRET, GR No. 192147 &192149, Aug. 23, 2011). The doctrine of res judicata does not ordinarily apply to questions of citizenship except only when:

1) A person’s citizenship is resolved by a court or an administrative body as a material issue in the controversy after a full-blown hearing;

2) With the active participation of the SolGen, or his representative;

3) The finding of citizenship is affirmed by the SC (Board of Commissioners, BID vs. de la Rosa, 197 SCRA 186).

Section 1. The following are citizens of the

Philippines:

(1)Those who are citizens of the

Philippines at the time of the adoption of

this Constitution;

a) Re: 1935 Constitution – i. Sec. 4, Philippine Bill of 1902 (en masse

naturalization including their children born thereafter. See Valles vs. COMEMLEC, and Tecson vs. COMELEC, GR No. 161434, March 3, 2004).

ii. Act No. 2927, March 26, 1920, then CA 473, on naturalization [including children below 21 and residing in the Philippines at the time of naturalization, as well as children born subsequent thereto.

iii. Foreign woman married to a Filipino before or after Nov. 30, 1938 who might themselves be lawfully naturalized applying sec. 15, CA 473 (Moy Ya Lim Yao vs. Commissioner of Immigration, 41 SCRA 292).

iv. Those who benefited the Roa doctrine applying the jus soli principle.

v. Those coming within the ambit of the ―Caram provision‖. Those born in the

Philippines of foreign parents, who before the adoption of the 1935 Constitution, had been elected to public office in the Islands (Chiongbian vs. de Leon, GR No. L-2007, Jan. 31, 1949).

vi. Those who elected Philippine citizenship.

Note: The 1935 Constitution, during which regime FPJ had seen first light, confers citizenship to all persons whose fathers are Filipino citizens whether such children are legitimate or illegitimate (Tecson vs. COMELEC, GR No. 161434, March 3, 2004).

b) Re: 1973 Constitution – those whose mothers are citizens of the Philippines. Provision is prospective in application; to benefit only those born on or after Jan. 17, 1973, the effectivity of the 1973 Constitution.

(2)Those whose fathers or mothers are

citizens of the Philippines;

(3)Those born before January 17,

1973, of Filipino mothers, who elect

Philippine Citizenship upon reaching the age of majority; and

Procedure for Election: Election is expressed in a statement to be signed and sworn to by the party concerned before any official authorized to administer oaths. Statement to be filed with the nearest Civil Registry and accompanied by oath of allegiance to the Constitution and the Government of the Philippines (sec. 1, CA 625). When to Elect: within 3 years from reaching the age of majority (Opinion of the Sec. of Justice, series 1948), except when there is a justifiable cause.

Delay on electing Filipino citizenship was justifiable because the party all along thought that he was already a Filipino citizen (Cuenco vs. Sec. of Justice, 5 SCRA 110).

“In Re Mallare Rule” is the jurisprudence that defines ―election‖ as both a formal and an informal process. In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the Court held that the exercise of the right of suffrage and the participation in election exercises constitute a positive act of election of Philippine citizenship.

The exercise of the right of suffrage and participation in election exercises constitute a


positive act of election of Philippine citizenship [Doctrine of Implied Election] (Co vs. HRET, supra).

But the rule is not applied in Re: Ching, Bar

Matter No. 914, Oct. 1, 1999). 14 years had elapsed after he had reached the age of majority.

Reconciliation: The difference in the above rulings lies on the fact that in the case of Co, the private respondent acquired the age of majority before the adoption of 1973 and 1987 Constitutions. As such, the SC noted that is unreasonable to require the respondent to make an express election of Philippine citizenship when there is no law which requires such express election. In Ching, the petitioner reached the age of majority under the 1987 Constitution which requires an express election of citizenship, and therefor, implied election is not acceptable according to the SC.

The right is available to the child as long as the

mother was a Filipino citizen at the time of her marriage to the alien, even if by reason of such marriage, she (the mother) lost her Filipino citizenship (Cu vs. Republic, 89 Phil. 473).

It even applies even if the mother is not a Filipino at birth [mere naturalized] (Opinion of the Sec. of Justice, s. 1948).

The right to elect Philippine citizenship is an inchoate right; during his minority, the child is a minor (Villahermosa vs. Commissioner of Immigration, 80 Phil. 541).

The constitutional requirements of electing Filipino citizenship apply only to legitimate children. Thus, when respondent is an illegitimate child of a Filipino mother, respondent became a Filipino upon her birth (Republic vs. Chule Lim, GR No. 153883, Jan. 13, 2004).

(4)Those who are naturalized in the

accordance with law.

MODES OF NATURALIZATION a) Direct mode –

i. Individual, through judicial or administrative proceedings;

ii. Special act of legislature; iii. Collective change of nationality as a

result of cession or subjugation; iv. Adoption of minors as nationals of

the State where born.

b) Derivative mode – citizenship conferred on: i. Wife of naturalized husband;

ii. Minor children of naturalized person; or

iii. An alien woman upon marriage to a national.

Note: Insert the following: CA 473: Qualifications for Naturalization 1. Not less than 18 years of age on the date of

hearing of petition; 2. Resided in the Philippines for not less than 10

years; may be reduced if – a. Honorably held office in the Philippines; b. Established a new industry or introduced a

useful invention; c. Married to a Filipino woman; d. Engaged as a teacher in Philippine public or

private school not established for exclusive instruction to a particular nationality or race, or in any branches of education or industry for a period of not less than 2 years;

e. Born in the Philippines. 3. Character –

a. Good moral character; b. Believes in the Constitution; c. Conducted himself in an irreproachable

conduct during his stay in the country. 4. Owns real estate in the Philippines not less than

P5, 000 in value; OR has some lucrative trade, profession or lawful occupation that can support himself and his family.

Being a student is lawful but it is not a lucrative one and therefore comes short of the legal requirement (Lim vs. Republic, GR No. L-3920, Nov. 20, 1951).

5. Speaks and writes Filipino or English and any

principal Philippine dialect –

A deaf-mute cannot be naturalized (Orestoff vs. Government, 40 OG 37).

6. Enrolled minor children in any public or private

school recognized by the government where Philippine history, government and civics are taught as part of the curriculum during the entire period of residence prior to hearing of petition.

All minor children [of proper age] should have been enrolled; failure to enroll even one of them will result in a denial of the petition (Tan Hi vs. Republic, GR No. L-3354, Jan. 25, 1951).


Disqualifications for Naturalization: 1. Opposed to organized government or affiliated

with any association or group of persons which uphold and teach doctrines opposing all organized governments;

2. defending or teaching necessity or propriety of violence, personal assault or assassination for the success or predominance of their ideas;

3. polygamists or believers in polygamy; 4. suffering from mental alienation or incurable

contagious disease; 5. convicted of a crime involving moral turpitude; 6. who during residence in the Philippines have not

mingled socially with Filipinos, or not evinced sincere desire to learn and embrace customs, traditions and ideals of Filipinos;

7. Citizens or subjects of nations with whom the Philippines is at war, during the period of such war;

8. citizens or subjects of a foreign country whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof (no reciprocity).

Procedure: 1. Declaration of intention – must be filed with the

Office of the Solicitor General one year before filing the application for naturalization. Purpose: To enable the government to make initial investigations into his circumstances to determine, his fitness for citizenship, and to test his sincerity. Exceptions: a. Those born in the Philippines and received

primary and secondary education in a Philippine school;

b. Those who have resided in the Philippines for 30 years; or

c. The widow or children of the applicant who died before his application was granted.

2. Filing of the petition for naturalization with the

RTC of the province of city where applicant resided for at least 1 year. Petition must state – a. name or names of the petitioner; b. various places of residence in the

Philippines; c. date of his arrival; d. occupation; e. date and place of birth; f. names and personal circumstances of his

wife and children if any; g. allegations that he possesses the

qualifications and none of the disqualifications for naturalization.

3. Upon receipt of the petition, the clerk of court has the duty of publishing it in the Official Gazette and in one newspaper of general circulation in the province or city once a week for 3 consecutive weeks and to post notices thereof and of the hearing. Note: Non-observance will make the proceedings null and void.

4. At least 6 months after the last publication but in no case within 30 days before any election, the hearing shall begin, at which the petitioner shall establish all the allegations of his petition, to be corroborated by at least 2 credible witnesses.

5. If the petitioner is able to prove his qualifications and not disqualifications, the petition shall be granted and it will become final after 30 days from notice. But the order shall only become executory after the period of 2 years during which the petitioner shall be under probation.

6. After probation, applicant may apply for administration of oath of citizenship in accordance with the decision rendered. His motion shall be granted provided: a. petitioner has not left the country; b. devoted himself to a lawful calling; c. has not been convicted of any violation of

law; and d. has not committed any act in contravention

of any government announced policies; 7. Administration of oath of citizenship, by virtue of

which the petitioner shall embrace Philippine citizenship and renounce allegiance to any foreign State.

Effects of Naturalization 1. On the Wife – vests citizenship on the wife who

might herself be lawfully naturalized; she need not prove her qualifications but only that she is not disqualified (Moy Ya Lim Yao vs. Comm. of Immigration, GR No. L-21289, Oct. 4, 1971).

2. On the Minor Children – a. If born in the Philippines – automatically

becomes a citizen; b. if born abroad before the naturalization of

the father – i. residing in RP at the time of

naturalization – automatically becomes a citizen.

ii. if not residing in the RP at the time of naturalization – considered citizen only during minority, unless begins to reside permanently in the Philippines.


c. If born outside of the Philippines after parents naturalization – considered a Filipino, provided registered as such before any Philippine consulate within 1 year after attaining majority age and takes oath of allegiance.

Grounds for Denaturalization: 1. Naturalization certificate obtained fraudulently or

illegally; 2. If, within 5 years, he returns to his native

country, or to some foreign country and establishes residence therein.

Provided that 1 year stay in native country or 2 year stay in a foreign country shall be prima facie evidence of intent to take up residence in the said country.

3. Naturalization obtained through invalid

declaration of intention; 4. Minor children failed to graduate through the

fault of the parents either by neglecting support or by transferring them to another school; and

5. allowing himself to be used as a dummy. Effects of Denaturalization a. If the ground affects intrinsic validity of

proceedings, denaturalization shall divest wife and children of their derivative naturalization; and

b. If the ground is personal, the wife and the children shall retain their citizenship.

ADMINISTRATIVE NATURALIZATION Insert RA 9139 Particularly on-

1) Qualifications; 2) Disqualifications; 3) Procedure; 4) Status of alien wife and minor children; 5) Cancellation of certificated of naturalization.

Section 2. Natural-born citizens are those

who are citizens of the Philippines from birth

without having to perform any act to acquire

or perfect their Philippine citizenship. Those

who elect Philippine citizenship in accordance

with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.

Offices which may only be occupied by natural-born Filipino citizens:

a. Elective Office – i. President; ii. Vice-President; iii. Senators;

iv. Members of the House of Representatives.

b. Appointive Offices –

i. Chief Justice and Members of the SC or any lower collegiate court;

ii. Chairman and Members of Constitutional Commissions;

iii. Ombudsman and the Deputy Ombudsman;

iv. Member of the governing board of the Monetary Board;

v. Chairman and members of the CHR.

Section 3. Philippine citizenship may be lost

or reacquired in the manner provided by law.

LOSS OF CITIZENSHIP a) By naturalization if a foreign country;

But see RA 9225 [insert].

b) By express renunciation of citizenship;

It means that renunciation is made known distinctly and explicitly, and not left to inference or implication like application for foreign [Australian] citizenship (Labo vs. COMEMLEC, 176 SCRA 1). It includes that act of obtention of a Portuguese passport and signing commercial documents as a Portuguese as it is construed as renunciation of citizenship (Yu vs. Defensor-Santiago, 169 SCRA 364).

c) By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining the age of 21, without prejudice to the Doctrine of Indelible Allegiance.

d) By rendering service to or accepting commission in the armed forces of a foreign country. But no loss of citizenship by such acts above if, either –

i. The Republic of the Philippines has a defensive and offensive pact of alliance with the said foreign country,

ii. The said foreign country maintains armed forces in Philippine territory with the consent of the Republic of the Philippines.

e) Cancellation of certificate of naturalization.


f) By having been declared by competent authority, a deserter of the armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted; or

g) in case of a woman, upon her marriage to a foreigner, if by virtue of the laws in force of her husband’s country, she acquires his nationality

REACQUISITION OF CITIZENSHIP

a) Taking the oath of allegiance under RA 9225;

b) Naturalization; c) Repatriation of women under RA 8171; d) Repatriation of deserters of the armed

forces; See PD 725. When Repatriation Takes Effect: It retroacts to the date of filing of the application (Frivaldo vs. COMELEC, 257 SCRA 727). Effect of Repatriation: Return to his original status before he lost his Philippine citizenship. Thus, a former natural born Filipino citizen is deemed to have recovered his natural-born status through repatriation (Bengzon vs. HRET, GR No. 142840, May 7, 2001). See RA 8171.

e) By direct act of congress.

Section 4. Citizens of the Philippines who

marry aliens shall retain their citizenship,

unless by their act or omission they are deemed, under the law to have renounced it.

Section 5. Dual allegiance of citizens is

inimical to the national interest and shall be

dealt with by law.

Note: The disqualification in sec 40, RA 7160 for running to a local elective office of persons with ―dual citizenship‖ refers to dual allegiance to reconcile it with the Constitution (Mercado vs. Manzano, 307 SCRA 630).

The SC stressed that the Constitutional policy is not against dual citizenship but dual loyalty (Ibid).

Doctrine of Effective Nationality [a.k.a. genuine link doctrine] This doctrine applies to a person having more than one nationality as expressed in Art. 5 of the Hague Convention of 1930 on the Conflict of Nationality Laws, when such person is in a third State. Such person shall be treated by the third State as if he had only one, without prejudice to the application of its (third State) law in matters of personal status and of any convention in force. Of the nationalities which any such person possesses, the third State shall recognize EXCLUSIVELY in its territory (meaning, it does not bind other States) either the nationality of the country in which he is habitually and principally residing or the nationality of the country with which in the circumstances he appears to be in effect closely connected. (Frivaldo vs Comelec, 174 SCRA 245, June 23, 1989).

ARTICLE V

SUFFRAGE

Section 1. Suffrage may be exercised by all

citizens of the Philippines, not otherwise

disqualified by law, who are at least eighteen

years of age, and who shall have resided in

the Philippines for at least one year and in the

place wherein they propose to vote, for at

least six months immediately preceding the

election. No literacy, property, or other

substantive requirement shall be imposed on the exercise of suffrage.

Section 2. The Congress shall provide a

system for securing the secrecy and sanctity

of the ballot as well as a system for absentee voting by qualified Filipinos abroad.

The Congress shall also design a procedure

for the disabled and the illiterates to vote

without the assistance of other persons. Until

then, they shall be allowed to vote under

existing laws and such rules as the

Commission on Elections may promulgate to

protect the secrecy of the ballot.

Note: For more substantial discussion, refer

to Election Laws.


ARTICLE VI

THE LEGISLATIVE DEPARTMENT

Section 1. The legislative power shall be

vested in the Congress of the Philippines

which shall consist of a Senate and a House

of Representatives, except to the extent

reserved to the people by the provision on

initiative and referendum.

LEGISLATIVE POWER The power to propose, enact, amend and repeal laws. Nature of Legislative Power The authority to make laws and to alter and repeal them and vested in Congress, except to the extent reserved to the people by the provisions on initiative and referendum.

Section 32, Art. VI. The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at least ten per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters thereof.

NOTE: Insert in this Area RA 6735. CONGRESS Nature: Bicameral – composed of Senate and House of Representatives.

Section 2. The Senate shall be composed of

twenty-four Senators who shall be elected at

large by the qualified voters of the Philippines, as may be provided by law.

Senate Composition: 24 Senators, elected at large.

Section 3. No person shall be a Senator

unless he is a natural-born citizen of the

Philippines and, on the day of the election, is

at least thirty-five years of age, able to read

and write, a registered voter, and a resident

of the Philippines for not less than two years

immediately preceding the day of the election.

QUALIFICATIONS: [Senator] 1) Natural-born citizen; 2) At least 35 years old, on the election day;

The age qualification must be possessed on the election day, that is, when the polls are opened and the votes are cast and not on the day of the proclamation.

3) Able to read and write; 4) Registered voter; 5) Resident of the Philippines for at least 2

years immediately preceding Election Day. The SC struck down as unconstitutional sec. 36 (g) of RA 9165, as sought to be implemented by the assailed COMELEC Resolution, effectively enlarges the qualification requirements enumerated in se. 3, Art. VI of the Constitution. As couched, it unmistakably requires a candidate for Senator to be certified illegal-drug clean, obviously as a precondition to the validity of a certificate of candidacy for Senator or, with like effect, a condition sine qua non to be voted upon and if proper, be proclaimed as Senator-elect. The COMELEC Resolution completes the chain with the proviso that ―no person elected to any public office shall enter upon the duties of his office until he has undergone mandatory drug test‖ (Pimentel, Jr. vs. COMELEC, GR No. 161658, Nov. 3, 2008).

Section 4. The term of office of the Senators

shall be six years and shall commence, unless

otherwise provided by law, at noon on the

thirtieth day of June next following their

election.

No Senator shall serve for more than two

consecutive terms. Voluntary renunciation of

the office for any length of time shall not be

considered as an interruption in the continuity

of his service for the full term of which he was elected.

Section 5. (1) The House of Representatives

shall be composed of not more than two

hundred and fifty members, unless otherwise

fixed by law, who shall be elected from

legislative districts apportioned among the

provinces, cities, and the Metropolitan Manila

area in accordance with the number of their

respective inhabitants, and on the basis of a

uniform and progressive ratio, and those who,

as provided by law, shall be elected through a

party-list system of registered national,

regional, and sectoral parties or organizations.

not applicable to date


(2) The party-list representatives shall

constitute twenty per centum of the total

number of representatives including those

under the party list. For three consecutive

terms after the ratification of this

Constitution, one-half of the seats allocated to

party-list representatives shall be filled, as

provided by law, by selection or election from

the labor, peasant, urban poor, indigenous

cultural communities, women, youth, and

such other sectors as may be provided by law, except the religious sector.

(3) Each legislative district shall comprise,

as far as practicable, contiguous, compact,

and adjacent territory. Each city with a

population of at least two hundred fifty

thousand, or each province, shall have at

least one representative.

(4) Within three years following the return

of every census, the Congress shall make a

reapportionment of legislative districts based on the standards provided in this section.

COMPOSITION Not more that 250 members, unless otherwise provided by law, consisting of –

a) District Representatives – elected from legislative districts apportioned among provinces, cities and the Metropolitan Manila area.

b) Part-list Representatives – shall constitute 20% of the total number of representatives, elected through a party-list system.

c) Sectoral Representatives – for 3 consecutive terms after the ratification of the Constitution, ½ seats allocated to party-list representatives shall be filled, as provided by law.

Apportionment of Legislative Districts Apportionment shall be made in accordance with the number of inhabitants, on the basis of uniform progressive ratio. But (i) its city with not less than 250,000 shall be entitled to at least 1 representative; and (ii) each province, each province, irrespective of number of inhabitants, is entitled to at least 1 representative. Note: There is no specific provision in the Constitution that fixes a 250, 000 minimum population that must compose a legislative district. Plainly read, sec. 5[3] requires a 250, 000 minimum population only for a city to be entitled to a representative, but not so for a province (Aquino vs. COMELEC, GR No. 198793, April 7, 2010).

Each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory. Purpose: To prevent gerrymandering. Gerrymandering The formation of one legislative district out of separate territories for the purpose of favoring a candidate or a party. It is a practice of creating legislative district composed only of towns or localities where a preferred candidate is expected to win, and excluding from said district those towns or localities where a preferred candidate is not expected to win.

The constitution does not preclude Congress from increasing its membership by passing a law other than a general apportionment law (Mariano vs. COMELEC, GR No. 118577, March 7, 1995).

Section 6. No person shall be a Member of

the House of Representatives unless he is a

natural-born citizen of the Philippines and, on

the day of the election, is at least twenty-five

years of age, able to read and write, and,

except the party-list representatives, a

registered voter in the district in which he

shall be elected, and a resident thereof for a

period of not less than one year immediately

preceding the day of the election.

QUALIFICATIONS: regular member 1) Natural-born citizen; 2) At least 25 years old, on the day of election; 3) Able to read and write; 4) Registered voter in the district in which he shall

be elected, except for party-list representatives; 5) A resident in the district for not less than 1 year

immediately preceding the election day. ― Residence‖ in Political Law The SC upheld the qualification of Imelda R. Marcos, despite her own declaration in the COC that she had resided in the district for only 7 months, because of the following –

i. A minor follows the domicile of his parents; Tacloban became Imelda’s domicile of origin by operation of law when her father brought the family to Leyte;

ii. Domicile of origin is lost only when there is actual removal or change of domicile, a bona fide intention of abandoning the former residence and establishing a new one, and acts which correspond with the purpose; in the absence of clear and positive proof of


the concurrence of all these, the domicile of origin should be deemed to continue;

iii. The wife does not automatically gain the husband’s domicile of origin and merely gained a new home, not a domicilium necessarium;

iv. Even assuming that she gained a new domicile after her marriage and acquired the right to choose a new one only after her husband died, her acts of following her return to the country clearly indicate that she choose Tacloban, her domicile of origin as her domicile of choice (Marcos vs. COMELEC, 248 SCRA 300).

The term ―residence‖ as used in election law is synonymous with ―domicile‖, which imports not only intention to reside in a fixed place but also personal presence in that place coupled with conduct indicative of such intention (Gallego vs. Verra, GR No. L-48641, Nov. 24, 1941). Domicile by Choice; Requisites –

i. Residence or bodily presence in the new locality and an intention to remain there (animus manendi);

ii. intention to abandon the old domicile (animus non revertendi).

Qualifications: [party-list representative]

1) natural-born citizen; 2) a registered voter; 3) a resident of the Philippines for a period of

not less that one year immediately preceding the day of the election;

4) able to read and write; 5) bona fide member of the party or

organization which he seeks to represent for at least 90 days preceding the day of the election; and

6) at least 25 years of age on the day of the election. In case of the youth sector, he must at least be 25 but not more than 30 years old on the day of the election (sec. 9, RA 7941).

District Representative Party-List Representative

Elected according to legislative district by the constituents of such district

Elected nationally, with party-list organizations garnering at least 2% of all the votes cast for the party-list system entitled to 1 seat, which is increased according to proportional representation, but not to exceed 3 seats

Must be resident of his legislative district for at least 1 year immediately before the election

No special residency requirement in a legislative district

Elected personally by name

The party is voted and if the party qualifies for a seat, he is chosen from among the list of nominees submitted by the party to the COMELEC, in the order stated in the nomination

Does not lose seat if he changes party affiliation

If he changes party affiliation, he loses his seat and he will be substituted from among the other nominees in the list

Vacancy may be filled by a special election provided that the vacancy is at least 1 year before the next election

In case of vacancy, a substitution will be made within the party, based on the list submitted

A district representative is not prevented from running again as a district representative if he lost during the previous election

A party-list representative cannot sit if he ran and lost in the previous election

A change in affiliation within months prior to election does not prevent a district representative from running under his new party

A change in affiliation within 6 months prior to election prohibits the party-list representative from sitting as representative under his new party or organization

Section 7. The Members of the House of

Representatives shall be elected for a term of

three years which shall begin, unless

otherwise provided by law, at noon on the

thirtieth day of June next following their

election.

No Member of the House of Representatives

shall serve for more than three consecutive

terms. Voluntary renunciation of the office for

any length of time shall not be considered as

an interruption in the continuity of his service for the full term for which he was elected.


REPUBLIC ACT No. 7941

AN ACT PROVIDING FOR THE ELECTION OF PARTY-LIST REPRESENTATIVES THROUGH THE PARTY-LIST SYSTEM, AND APPROPRIATING FUNDS THEREFOR

Section 1. Title. This Act shall be known as the "Party-List System Act."

Section 2. Declaration of policy. The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sectoral parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadcast possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible.

Section 3. Definition of Terms. (a) The party-list system is a mechanism of proportional representation in the election of representatives to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections (COMELEC). Component parties or organizations of a coalition may participate independently provided the coalition of which they form part does not participate in the party-list system.

(b) A party means either a political party or a sectoral party or a coalition of parties.

(c) A political party refers to an organized group of citizens advocating an ideology or platform, principles and policies for the general conduct of government and which, as the most immediate means of securing their adoption, regularly

nominates and supports certain of its leaders and members as candidates for public office.

It is a national party when its constituency is spread over the geographical territory of at least a majority of the regions. It is a regional party when its constituency is spread over the geographical territory of at least a majority of the cities and provinces comprising the region.

(d) A sectoral party refers to an organized group of citizens belonging to any of the sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special interest and concerns of their sector,

(e) A sectoral organization refers to a group of citizens or a coalition of groups of citizens who share similar physical attributes or characteristics, employment, interests or concerns.

(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral parties or organizations for political and/or election purposes.

Section 4. Manifestation to Participate in the Party-List System. Any party, organization, or coalition already registered with the Commission need not register anew. However, such party, organization, or coalition shall file with the Commission, not later than ninety (90) days before the election, a manifestation of its desire to participate in the party-list system.

Section 5. Registration. Any organized group of persons may register as a party, organization or coalition for purposes of the party-list system by filing with the COMELEC not later than ninety (90) days before the election a petition verified by its president or secretary stating its desire to participate in the party-list system as a national, regional or sectoral party or organization or a coalition of such parties or organizations, attaching thereto its constitution, by-laws, platform or program of government, list of officers, coalition agreement and other relevant information as the COMELEC may require: Provided, That the sectors shall include labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,


handicapped, women, youth, veterans, overseas workers, and professionals.

The COMELEC shall publish the petition in at least two (2) national newspapers of general circulation.

The COMELEC shall, after due notice and hearing, resolve the petition within fifteen (15) days from the date it was submitted for decision but in no case not later than sixty (60) days before election.

Section 6. Refusal and/or Cancellation of Registration. The COMELEC may, motu propio or upon verified complaint of any interested party, refuse or cancel, after due notice and hearing, the registration of any national, regional or sectoral party, organization or coalition on any of the following grounds:

(1) It is a religious sect or denomination, organization or association, organized for religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation, organization, whether directly or through any of its officers or members or indirectly through third parties for partisan election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%) of the votes cast under the party-list system in the two (2) preceding elections for the constituency in which it has registered.

Section 7. Certified List of Registered Parties. The COMELEC shall, not later than sixty (60) days before election, prepare a certified list of national, regional, or sectoral parties, organizations or coalitions which have applied or who have manifested their desire to participate under the party-list system and distribute copies thereof to all precincts for posting in the polling places on election day. The names of the part y-list nominees shall not be shown on the certified list.

Section 8. Nomination of Party-List Representatives. Each registered party, organization or coalition shall submit to the COMELEC not later than forty-five (45) days before the election a list of names, not less than five (5), from which party-list representatives shall be chosen in case it obtains the required number of votes.

A person may be nominated in one (1) list only. Only persons who have given their consent in writing may be named in the list. The list shall not include any candidate for any elective office or a person who has lost his bid for an elective office in the immediately preceding election. No change of names or alteration of the order of nominees shall be allowed after the same shall have been submitted to the COMELEC except in cases where the nominee dies, or withdraws in writing his nomination, becomes incapacitated in which case the name of the substitute nominee shall be placed last in the list. Incumbent sectoral representatives in the House of Representatives who are nominated in the party-list system shall not be considered resigned.

Section 9. Qualifications of Party-List Nominees. No person shall be nominated as party-list representative unless he is a natural-born citizen of the Philippines, a registered voter, a resident of the Philippines for a period of not less than one (1)year immediately preceding the day of the election, able to read and write, a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election, and is at least twenty-five (25) years of age on the day of the election.


In case of a nominee of the youth sector, he must at least be twenty-five (25) but not more than thirty (30) years of age on the day of the election. Any youth sectoral representative who attains the age of thirty (30) during his term shall be allowed to continue in office until the expiration of his term.

Section 10. Manner of Voting. Every voter shall be entitled to two (2) votes: the first is a vote for candidate for member of the House of Representatives in his legislative district, and the second, a vote for the party, organizations, or coalition he wants represented in the house of Representatives: Provided, That a vote cast for a party, sectoral organization, or coalition not entitled to be voted for shall not be counted: Provided, finally, That the first election under the party-list system shall be held in May 1998.

The COMELEC shall undertake the necessary information campaign for purposes of educating the electorate on the matter of the party-list system.

Section 11. Number of Party-List Representatives. The party-list representatives shall constitute twenty per centum (20%) of the total number of the members of the House of Representatives including those under the party-list.

For purposes of the May 1998 elections, the first five (5) major political parties on the basis of party representation in the House of Representatives at the start of the Tenth Congress of the Philippines shall not be entitled to participate in the party-list system.

In determining the allocation of seats for the second vote, the following procedure shall be observed:

(a) The parties, organizations, and coalitions shall be ranked from the highest to the lowest based on the number of votes they garnered during the elections.

(b) The parties, organizations, and coalitions receiving at least two percent (2%) of the total votes cast for the party-list system shall be entitled to one seat each: Provided, That those garnering more than two percent (2%) of the votes shall be entitled to additional seats in

proportion to their total number of votes : Provided, finally, That each party, organization, or coalition shall be entitled to not more than three (3) seats.

Section 12. Procedure in Allocating Seats for Party-List Representatives. The COMELEC shall tally all the votes for the parties, organizations, or coalitions on a nationwide basis, rank them according to the number of votes received and allocate party-list representatives proportionately according to the percentage of votes obtained by each party, organization, or coalition as against the total nationwide votes cast for the party-list system.

Section 13. How Party-List Representatives are Chosen. Party-list representatives shall be proclaimed by the COMELEC based on the list of names submitted by the respective parties, organizations, or coalitions to the COMELEC according to their ranking in said list.

Section 14. Term of Office. Party-list representatives shall be elected for a term of three (3) years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their election. No party-list representatives shall serve for more than three (3) consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity his service for the full term for which he was elected.

Section 15. Change of Affiliation; Effect. Any elected party-list representative who changes his political party or sectoral affiliation during his term of office shall forfeit his seat: Provided, That if he changes his political party or sectoral affiliation within six (6) months before an election, he shall not be eligible for nomination as party-list representative under his new party or organization.

Section 16. Vacancy. In case of vacancy in the seats reserved for party-list representatives, the vacancy shall be automatically filled by the next representative from the list of nominees in the order submitted to the COMELEC by the same party, organization, or coalition, who shall serve for the unexpired term. If the list is exhausted, the


party, organization coalition concerned shall submit additional nominees.

Section 17. Rights of Party-List Representatives. Party-List Representatives shall be entitled to the same salaries and emoluments as regular members of the House of Representatives.

Section 18. Rules and Regulations. Section 19. Appropriations. Section 20. Separability Clause. Section 21. Repealing Clause. Section 22. Effectivity. Approved, March 3, 1995. Four Inviolable Principles under RA 7941 and the Constitution: (Veterans Federation Party vs. COMEMLEC, GR No. 136781, Oct. 6, 2000)

a) The 20% allocation. The combined number of all the party-list congressmen shall not exceed 20% of the total membership of the House of Representatives;

b) The 2% threshold. Only those parties garnering a minimum of 2% of the total votes cast for the party-list system are qualified to have a seat in the House;

c) The 3 seat limit. Each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of 3 seats;

d) Proportional representation. The additional seats which a qualified party is entitled to shall be computed ―in proportion to their total number of votes‖.

The continued operation of the 2% threshold as it applies to the allocation of the additional seat is now unconstitutional because this threshold mathematically prevents the filling-up of the available party-list seats. The additional seats shall be distributed to the parties in a second round of seat allocation (Barangay Ass. for National Advancement [BANAT] vs. COMELEC, GR No. 179271, April 21, 2009).

GUIDELINES in order that a party registered under the party-list system may be entitled to a seat in the House: (Ang Bagong Bayani – OFW Labor Party vs. COMELEC, GR No. 147589, June 26, 2001).

a) Must represent marginalized and under represented sectors;

b) Major political parties must comply with this statutory policy;

c) Must be subject to prohibition against registration of religious sects;

d) The party must not be disqualified under the law;

e) The party must not be an adjunct of an entity or project funded by the government;

f) The party and its nominees must comply with the requirements of the law;

g) The nominee must also represent a marginalized or under-represented sector;]

h) The nominee must be able to contribute to the formulation and enactment of appropriate legislation that will benefit the nation.

Section 8. Unless otherwise provided by law,

the regular election of the Senators and the

Members of the House of Representatives shall be held on the second Monday of May.

Section 9. In case of vacancy in the Senate

or in the House of Representatives, a special

election may be called to fill such vacancy in

the manner prescribed by law, but the

Senator or Member of the House of

Representatives thus elected shall serve only for the unexpired term.

Republic Act No. 6645

December 28, 1987

AN ACT PRESCRIBING THE MANNER OF FILING A VACANCY IN THE CONGRESS OF THE PHILIPPINES

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled::

Section 1. In case a vacancy arises in the Senate at least eighteen (18) months or in the House of Representatives at least (1) year before the next regular election for Members of Congress, the Commission on Elections, upon receipt of a resolution of the Senate or the House of Representatives, as the case may be, certifying to the existence of such vacancy and calling for a special election, shall hold a special election to fill such vacancy. If Congress is in recess, an official communication on the existence of the vacancy and call for a special election by the President of the Senate or by the Speaker of the House of Representatives, as the case may be, shall be sufficient for such purpose. The Senator or Member


of the House of Representatives thus elected shall serve only for the unexpired term.

Section 2. The Commission on Elections shall fix the date of the special election, which shall not be earlier than forty-five (45) days not later than ninety (90) days from the date of such resolution or communication, stating among other things the office or offices to be voted for: provided, however, that if within the said period a general election is scheduled to be held, the special election shall be held simultaneously with such general election.

Section 3. The Commission on Elections shall send copies of the resolution, in number sufficient for due distribution and publication, to the Provincial of City Treasurer of each province or city concerned, who in turn shall publish it in their respective localities by posting at least three copies thereof in as many conspicuous places in each of their election precincts, and a copy in each of the polling places and public markets, and in the municipal buildings.

Section 4. This Act shall take effect upon its publication in the Official Gazette or in at least two newspapers of general circulation.

Approved: December 28, 1987.

The Lone Candidate Law RA 8295

enacted on June 6, 1997

Salient Provisions Only:

Sec. 2 thereof provides that “Upon the expiration of

the deadline for the filing of the certificate of

candidacy in a special election called to fill a

vacancy in an elective position other than for

President and Vice-President, when there is only

one (1) qualified candidate for such position, the

lone candidate shall be proclaimed elected to the

position by proper proclaiming body of the

Commission on Elections without holding the

special election upon certification by the

Commission on Elections that he is the only

candidate for the office and is thereby deemed

elected.”

Sec. 3 of the law provides that “the lone candidate

so proclaimed shall assume office not earlier than

the scheduled election day, in the absence of any

lawful grounds to deny due course or cancel the

certificate of candidacy in order to prevent such

proclamation, as provided for under Secs. 69 and 78

of BP Blg. 881 also known as the Omnibus Election

Code (OEC).”

Who are disqualified to run in SPECIAL ELECTION under the Lone Candidate Law:

Sec. 4 of the Lone Candidate Law provides that “In addition to the disqualifications mentioned in Secs. 12 and 68 of the OEC and Sec. 40 of RA 7160, otherwise known as the Local Government Code, whenever the evidence of guilt is strong, the following persons are disqualified to run in a SPECIAL ELECTION called to fill the vacancy in an elective office, to wit:

a. Any elective official who has resigned from his

office by accepting an appointive office or for

whatever reason which he previously occupied

but has caused to become vacant due to his

resignation; and

Comment to No. a. For the disqualification to

apply, it is not necessary that the vacancy to be

filled up in a special election is the vacancy

created by that former elective official. It is

enough that previously the former elective

official caused a vacancy in his office through

resignation.

b. Any person who, directly or indirectly, coerces,

bribes, threatens, harasses, intimidates or actually

causes, inflicts or produces any violence, injury,

punishment, torture, damage, loss or

disadvantage to any person or persons aspiring to

become a candidate or that of the immediate

member of his family, his honor or property that

is meant to eliminate all other potential

candidates.

Section 10. The salaries of Senators and

Members of the House of Representatives

shall be determined by law. No increase in

said compensation shall take effect until after


the expiration of the full term of all the

Members of the Senate and the House of

Representatives approving such increase.

Note: This is no prohibition on reduction of salaries of members of Congress.

Section 11. A Senator or Member of the

House of Representatives shall, in all offenses

punishable by not more than six years

imprisonment, be privileged from arrest while

the Congress is in session. No Member shall

be questioned nor be held liable in any other

place for any speech or debate in the Congress or in any committee thereof.

NOTE: This provision is reinforced by art. 145, RPC. See Criminal Law Reviewer. A member of Congress may be held to account for such speech or debate [disorderly behavior] by the House to which he belongs (Osmeña vs. Pendatun. 109 Phil. 863). The SC sustained the privilege of speech of Senator Santiago over her duties as member of the Bar. The SC ruled that, ―we, however, would be remiss in our duty if we let the Senator’s offensive and disrespectful language that definitely tended to denigrate the institution pass by. It is imperative on our part to re-instill in Senator/Atty. Santiago her duty to respect the courts of justice, especially this Tribunal, and remind her anew that the parliamentary non-accountability thus granted to members of Congress is not to protect them against prosecutions for their own benefit, but to enable them, as the people’s representatives, to perform the functions of their office without fear of being made responsible before the courts or other forums outside the Congressional Hall. it is intended to protect members of Congress against government pressure and intimidation aimed at influencing the decision-making prerogatives of Congress and its members (Pobre vs. Santiago, AC No. 7399, Aug. 25, 2009).

Section 12. All Members of the Senate and

the House of Representatives shall, upon

assumption of office, make a full disclosure of

their financial and business interests. They

shall notify the House concerned of a

potential conflict of interest that may arise

from the filing of a proposed legislation of which they are authors.

Section 13. No Senator or Member of the

House of Representatives may hold any other

office or employment in the Government, or

any subdivision, agency, or instrumentality

thereof, including government-owned or

controlled corporations or their subsidiaries,

during his term without forfeiting his seat.

Neither shall he be appointed to any office

which may have been created or the

emoluments thereof increased during the term for which he was elected.

DISQUALIFICATIONS: a) Incompatible office (1

st part) –

Forfeiture of the seat in Congress shall be automatic upon the member’s assumption of such other office deemed incompatible with his seat in Congress (Adaza vs. Pacana, 135 SCRA 431).

The rule does not apply where the office is only in an ex oficio capacity. It is deemed part of the function of his principal office.

b) Forbidden office (2

nd part) –

The ban against appointment to the office created or emoluments thereof increased shall, however, last only for the duration of the term for which the member was elected.

Section 14. No Senator or Member of the

House of Representatives may personally

appear as counsel before any court of justice

or before the Electoral Tribunals, or quasi-

judicial and other administrative bodies.

Neither shall he, directly or indirectly, be

interested financially in any contract with, or

in any franchise or special privilege granted

by the Government, or any subdivision,

agency, or instrumentality thereof, including

any government-owned or controlled

corporation, or its subsidiary, during his term

of office. He shall not intervene in any matter

before any office of the Government for his

pecuniary benefit or where he may be called upon to act on account of his office.

Note: What is prohibited is ―personally‖ appearing as counsel (Nachura, p. 246). The prohibited contracts are those that involve a financial investment or business of which the member of the Congress expects to derive profit or gain; the reason for the prohibition is to forestall any undue influence, deliberately or not, upon the body where he is appearing. Note: As to members of Congress, there is NO general prohibition as to the practice of their professions.


Section 15. The Congress shall convene once

every year on the fourth Monday of July for

its regular session, unless a different date is

fixed by law, and shall continue to be in

session for such number of days as it may

determine until thirty days before the

opening of its next regular session, exclusive

of Saturdays, Sundays, and legal holidays.

The President may call a special session at

any time.

Note: Connect this article to art. VII, sec. 23 [The addressing power of the President at the time of the opening of its regular session] – (aka SONA) SESSIONS a) Regular – once every year, on the 4

th Monday

of July, as the opening of the regular session;

b) Special – upon call of the President

c) Joint sessions - i. Voting separately:

1) Choosing the president [majority vote of all members of Congress] (sec. 4, Art. VII)

2) Determine President’s disability [2/3 vote of both Houses] (sec. 11, Art. VII).

3) Confirming the nomination of the Vice-President [majority vote of all its members] (sec. 9, Art VII).

4) Declaration of the existence of a state of war [2/3 vote of both Houses] (sec. 23, Art. VI).

5) Proposing amendments to the Constitution [2/3 vote off all its members] (sec. 1, Art. XVII).

ii. Voting jointly: to revoke or extend

proclamation suspending the privilege of the writ of habeas corpus or placing the Philippines under martial law [majority vote of all its members] (sec. 18, Art. VII).

Note: The 30-day period is the minimum period of recess and may be lengthened by Congress in its discretion.

Section 16. (1) The Senate shall elect its

President and the House of Representatives,

its Speaker, by a majority vote of all its respective Members.

Each House shall choose such other officers

as it may deem necessary.

Note: While the Constitution mandates that the Senate President must be elected by a majority of all its members, it does not ipso facto mean that those who did not vote for him comprise the minority (Santiago- vs. Guingona, GR No. 134577, Nov. 18, 1988).

(2) 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.

Note: The basis in determining the existence of a quorum in the Senate shall be the total number of senators who are in the country and within the coercive jurisdiction of the Senate (Avelino vs. Cuenco, 83, Phil. 17).

The question of quorum cannot be raised repeatedly, especially when a quorum is obviously present, for the purpose of delaying the business of the House (Resolution of MR, Arroyo vs. De Venecia, GR No. 127255, June 26, 1998).

(3) Each House may determine the rules

of its proceedings, punish its Members for

disorderly behavior, and, with the

concurrence of two-thirds of all its Members,

suspend or expel a Member. A penalty of

suspension, when imposed, shall not exceed sixty days.

Note: The determination of what acts constitute disorderly behavior is within the discretionary authority of the House concerned. It’s a political question (Osmeña vs. Pendatun, supra).

The suspension contemplated in the Constitution is different from suspension prescribed under the Anti-Graft and Corrupt Practices Act [RA 3019]. The latter is not a penalty but a preventive measure and is not imposed for disorderly behavior (Paredes vs. Sandiganbayan, GR No. 118364, Aug. 10, 1995).

(4) Each House shall keep a Journal of its

proceedings, and from time to time publish

the same, excepting such parts as may, in its

judgment, affect national security; and the

yeas and nays on any question shall, at the

request of one-fifth of the Members present, be entered in the Journal.


Each House shall also keep a Record of its proceedings.

Matters which, under the Constitution, are to be entered in the journal:

1) Yeas and nays on third and final reading of a bill;

2) Veto message of the President; 3) Yeas and nays on the re-passing of a

bill vetoed by the President; and 4) Yeas and nays on any question at the

request of 1/5 of members present. ENROLLED BILL (THEORY) Is one duly introduced and finally passed by both Houses, authenticated by the proper officers of each, and approved by the President. The enrolled bill is conclusive upon the courts as regards the tenor of the measure passed by Congress and approved by the President (Mabanag vs. Vito, 78 Phil. 1).

If a mistake was made in the printing of the bill before it was certified by Congress and approved by the President, the remedy is amendment, or corrective legislation, not a judicial decree (Casco [Phil] Chemical Co. vs. Gimenez, 7 SCRA 347).

Note: Enrolled bill prevails over journal entry, except those under the Constitution, must be entered in the journal (Astorga vs. Villegas, 56 SCRA 714).

(5) Neither House during the sessions of

the Congress shall, without the consent of the

other, adjourn for more than three days, nor

to any other place than that in which the two Houses shall be sitting.

Note: ―Place‖ refers not to the building but the political unit where the houses may be sitting. Adjournment Sine Die Interval between the session of one Congress and that of another; Congress must ―stop the Clock‖ at midnight of the last day of session in order to validly pass a law.

The Senate is a continuing body while the House is not.

Section 17. The Senate and the House of

Representatives shall each have an Electoral

Tribunal which shall be the sole judge of all

contests relating to the election, returns, and

qualifications of their respective Members.

Each Electoral Tribunal shall be composed of

nine Members, three of whom shall be

Justices of the Supreme Court to be

designated by the Chief 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

proportional representation from the political

parties and the parties or organizations

registered under the party-list system

represented therein. The senior Justice in the

Electoral Tribunal shall be its Chairman.

Note: The HRET (Electoral Tribunals) was created as non-partisan court. It must be independent of Congress and devoid of partisan influence and consideration. Disloyalty to the party and breach of party discipline are not valid grounds for expulsion of a member (Angara vs. Electoral Commission, 63 Phil. 139). Thus, tribunal members enjoy security of tenure and may be terminated only for just causes –

i. Expiration of Congressional term; ii. Death; iii. Resignation from the political party; iv. Formal affiliation with another party, or

removal for other valid causes (Bondoc vs. Pineda, 201 SCRA 792).

The SC cannot order the disqualification of

senator-members of the SET, because election contest is filed against them considering the specific mandate of the Constitution (Abbas vs. SET, 166 SCRA 651).

POWER: The SET and HRET shall be the sole judge of all contests relating to the election, returns and qualifications of their respective members. Electoral Tribunal may assume jurisdiction only after the winning candidate shall have been duly proclaimed, has taken his oath of office and assumed the functions of the office, because it is only then that he is said to be a member of Congress (Aquino vs. COMELEC, 248 SCRA 400). REVIEW OF DECISIONS Its decisions may be reviewed by the SC only upon showing of grave abuse of discretion in a petition for certiorari filed under Rule 65 (Pena vs. HRET, GR No. 123037, March 21, 1997).

Section 18. There shall be a Commission

on Appointments consisting of the President

of the Senate, as ex officio Chairman, twelve

Senators, and twelve Members of the House

of Representatives, elected by each House on

the basis of proportional representation from

the political parties and parties or


organizations registered under the party-list

system represented therein. The chairman of

the Commission shall not vote, except in case

of a tie. The Commission shall act on all

appointments submitted to it within thirty

session days of the Congress from their

submission. The Commission shall rule by a majority vote of all the Members.

COMMISSION ON APPOINTMENTS; Composition –

i. Senate President, as ex oficio chairman; ii. 12 Senators, and 12, Representatives,

elected based on proportional representation.

Note: It is not mandatory to elect 12 senators to

the Commission, what the Constitution requires is that there must be at least a majority of the entire membership (Guingona vs. Gonzales, 214 SCRA 789).

For the Senate, a political party must have at least 2 members to be entitled to one seat in the Commission. Rounding off is not allowed (Ibid).

The Commission on Appointments is independent of the two Houses of Congress; its employees are not technically employees of Congress. It has the power to promulgate its own rules of procedure.

Section 19. The Electoral Tribunals and the

Commission on Appointments shall be

constituted within thirty days after the Senate

and the House of Representatives shall have

been organized with the election of the

President and the Speaker. The Commission

on Appointments shall meet only while the

Congress is in session, at the call of its

Chairman or a majority of all its Members, to

discharge such powers and functions as are herein conferred upon it.

Section 20. The records and books of

accounts of the Congress shall be preserved

and be open to the public in accordance with

law, and such books shall be audited by the

Commission on Audit which shall publish

annually an itemized list of amounts paid to and expenses for each Member.

Section 21. The Senate or the House of

Representatives or any of its respective

committees may conduct inquiries in aid of

legislation in accordance with its duly

published rules of procedure. The rights of

persons appearing in, or affected by, such inquiries shall be respected.

The Power of Legislative Investigation May refer to the implementation or re-examination of any law or appropriation, or in connection with any proposed legislation or for the formulation of or in connection with future legislation, or will aid in the review or formulation of a new legislative policy or enactment (Senate Rules Governing Inquiries in Aid of Legislation). Limitations:

i. It must be in aid of legislation (Bengzon vs. Senate Blue Ribbon, 203 SCRA 767);

ii. In accordance with duly published rules of procedure;

As the Senate of each Congress acts separately and independently of the Senate of the Congress before it, the same is required to republish the Rules in order to comply with sec. 21 (Neri vs. Senate, GR No. 180643, Sept. 4, 2008).

iii. Right of persons appearing, in, or affected by such inquiry, shall be respected; Thus, right against self-incrimination is available even in legislative investigations in aid of legislation.

Case pending in court vs. Legislative Investigation Doing so would be an encroachment into the exclusive domain of judicial jurisdiction. In the instant case, a civil complaint had been filed before the Sandiganbayan prior to the commencement of the inquiry. Thus, the Sandiganbayan had already acquired jurisdiction into the subject matter (Bengzon vs. Senate Blue Ribbon, GR No. 89914, Nov. 20, 1991). However, when a resolution which was explicit on the subject and nature of the inquiry to be conducted by the respondent Committee was passed before the conduct of the investigation, mere filing of a criminal or administrative complaint before a court or a quasi-judicial body should not automatically bar the conduct of legislative investigation (Standard Chartered Bank vs. Senate Committee on Banks, GR No. 167173, Dec. 27, 2007). Persons under legislative investigation are not being indicted as accused in a criminal proceeding but are merely summoned as resource persons or witnesses in a legislative inquiry. Hence, they cannot, on the ground of their right against self-incrimination, altogether decline appearing before Congress, although they may invoke the privilege when a question calling for an incriminating answer is propounded


Power to Punish for Contempt [legislative contempt]: Punishment of a contumacious witness may include imprisonment, for the duration of the session subject to the principles of due process and equal protection clause of the Constitution (Arnault vs. Nazareno, 87 Phil. 29).

The pardoning power of the President does not extend to persons punished for legislative contempt.

Section 22. The heads of departments may,

upon their own initiative, with the consent of

the President, or upon the request of either

House, as the rules of each House shall

provide, appear before and be heard by such

House on any matter pertaining to their

departments. Written questions shall be

submitted to the President of the Senate or

the Speaker of the House of Representatives

at least three days before their scheduled

appearance. Interpellations shall not be

limited to written questions, but may cover

matters related thereto. When the security of

the State or the public interest so requires

and the President so states in writing, the

appearance shall be conducted in executive session.

NOTE: sec. 22 is called by some as the Power to Conduct Question-Hour (Nachura), other calls it Oversight Function (Bernas).

Sec. 22 does not provide for a ―question hour‖. Such is proper to a parliamentary system where there is no separation between the legislative and the executive department. Sec. 22, unlike in the question hour under the 1973 Constitution, has made the appearance of department heads voluntary. They can appear on their own initiative, with the consent of the President, or at the request of Congress. Because of separation of powers, however, department secretaries may not impose their appearance upon either House (Bernas, 2011).

Sec. 21 Legislative Investigation

Sec. 22 Oversight Function

As to persons who may appear

Any person Only a department head

As to who conducts investigation

Committees Entire body

As to subject matter

Any matter for the purpose of legislation

Matters related to the department only

As to purpose

In aid of legislation, the aim to which is to elicit information that may be

used for legislation

The objective of which is to obtain information in

pursuit of oversight function

As to attendance

Compulsory

Discretionary hence it is valid for the President to require that the consent be required first before

her subordinates appear

As to compelling power of Congress

Can compel the attendance of executive

officials, except the President

Congress cannot compel appearance of executive officials if no

consent is given.

EXECUTIVE PRIVILEGE The power of the government to refuse to divulge information to the public, to the courts, an to Congress (Senate Blue Ribbon vs. Ermita). Operational Proximity Test Communications which are close enough to the President to be revelatory of his deliberations or to pose a risk to the candor of his advisers are covered by the privilege (Neri vs. Senate, GR No. 180643, Sept. 4, 2008). FOUR FORMS OF EXECUTIVE PRIVILEGE a) State secrets privilege – b) military and diplomatic secrets;

The President has the Constitutional authority to prevent member of the AFP from testifying before a legislative inquiry, by virtue of his Commander-in-Chief and a military officer who defies such injunction is liable under military justice (Gudani vs. Senga, GR No. 170165, Aug 15, 2006).

c) Informer’s privilege; d) Internal deliberations – generic privilege. Note: EO 464 issued by President Arroyo may be invoked only if the request for members of the Cabinet is pursuant to Question Hour. If pursuant to legislative investigation in aid of legislation, they may not refuse to appear. However, the President, or the Executive Secretary may not be required to appear in Congress even if the investigation is in aid of legislation. To permit, otherwise would violate the separation of powers. When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as the Chief Executive, such


department heads must give report of the performance as a matter of duty. In such instances, sec. 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is ―in aid of legislation‖, the appearance is mandatory. The only way for department heads to exempt themselves from it is by a valid claim of executive privilege (Senate vs. Ermita, GR No. 169777, April 20, 2006).

Section 23. (1) The Congress, by a vote of

two-thirds of both Houses in joint session

assembled, voting separately, shall have the

sole power to declare the existence of a state of war.

(2) In times of war or other national

emergency, the Congress may, by law,

authorize the President, for a limited period

and subject to such restrictions as it may

prescribe, to exercise powers necessary and

proper to carry out a declared national policy.

Unless sooner withdrawn by resolution of the

Congress, such powers shall cease upon the next adjournment thereof.

Section 24. All appropriation, revenue or

tariff bills, bills authorizing increase of the

public debt, bills of local application, and

private bills, shall originate exclusively in the

House of Representatives, but the Senate

may propose or concur with amendments.

Note: It is important to emphasize that it is not the law, but the bill which is required that must originate in the House of Representatives, because the bill may undergo such extensive changes in the Senate that may result in the re-writing of the whole. To insist otherwise, would be to deny to the Senate the power to ―concur with amendments‖ but also to ―propose amendments‖ (Tolentino vs. Sec. of Finance).

Section 25. (1) The Congress may not

increase the appropriations recommended by

the President for the operation of the

Government as specified in the budget. The

form, content, and manner of preparation of the budget shall be prescribed by law.

(2) No provision or enactment shall be

embraced in the general appropriations bill

unless it relates specifically to some particular

appropriation therein. Any such provision or

enactment shall be limited in its operation to the appropriation to which it relates.

(3) The procedure in approving

appropriations for the Congress shall strictly

follow the procedure for approving

appropriations for other departments and agencies.

(4) A special appropriations bill shall

specify the purpose for which it is intended,

and shall be supported by funds actually

available as certified by the National

Treasurer, or to be raised by a corresponding revenue proposal therein.

(5) No law shall be passed authorizing

any transfer of appropriations; however, the

President, the President of the Senate, the

Speaker of the House of Representatives, the

Chief Justice of the Supreme Court, and the

heads of Constitutional Commissions may, by

law, be authorized to augment any item in

the general appropriations law for their

respective offices from savings in other items of their respective appropriations.

(6) Discretionary funds appropriated

for particular officials shall be disbursed only

for public purposes to be supported by

appropriate vouchers and subject to such guidelines as may be prescribed by law.

(7) If, by the end of any fiscal year,

the Congress shall have failed to pass the

general appropriations bill for the ensuing

fiscal year, the general appropriations law for

the preceding fiscal year shall be deemed re-

enacted and shall remain in force and effect

until the general appropriations bill is passed by the Congress.

The Government Budgeting Process 1. Budget preparation – The first step is

essentially tasked upon the Executive branch and covers the estimation of government revenues, the determination of budgetary priorities and activities within the constraints imposed by available revenues and borrowing limits, and the translation of desired priorities and activities onto expenditure levels.

2. Legislative authorization – At this stage, Congress enter the picture and deliberates or acts on the budget proposals of the President, and Congress in the exercise of its own


judgment and wisdom formulates and appropriation act precisely following the process established by the Constitution, which specifies that no money may be paid from the Treasury except in accordance with an appropriation made by law.

3. Budget execution – Tasked on the Executive, the 3

rd process covers the various operational

aspects of budgeting.

4. Budget accountability – the 4th phase refers to

the evaluation of actual performance and initially approved work targets, obligations incurred, personnel hired and work accomplished are compared with the targets set at the time the agency budgets were approved (Guingona vs. Carague, GR No. 94571, April 22, 1991).

Section 26. (1) Every bill passed by the

Congress shall embrace only one subject which shall be expressed in the title thereof.

(2) No bill passed by either House

shall become a law unless it has passed three

readings on separate days, and printed copies

thereof in its final form have been distributed

to its Members three days before its passage,

except when the President certifies to the

necessity of its immediate enactment to meet

a public calamity or emergency. Upon the last

reading of a bill, no amendment thereto shall

be allowed, and the vote thereon shall be

taken immediately thereafter, and the yeas and nays entered in the Journal.

Section 27. (1) Every bill passed by the

Congress shall, before it becomes a law, be

presented to the President. If he approves the

same he shall sign it; otherwise, he shall veto

it and return the same with his objections to

the House where it originated, which shall

enter the objections at large in its Journal and

proceed to reconsider it. If, after such

reconsideration, two-thirds of all the Members

of such House shall agree to pass the bill, it

shall be sent, together with the objections, to

the other House by which it shall likewise be

reconsidered, and if approved by two-thirds

of all the Members of that House, it shall

become a law. In all such cases, the votes of

each House shall be determined by yeas or

nays, and the names of the Members voting

for or against shall be entered in its Journal.

The President shall communicate his veto of

any bill to the House where it originated

within thirty days after the date of receipt

thereof, otherwise, it shall become a law as if

he had signed it.

(2) The President shall 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 items to

which he does not object.

WHEN BILL BECOMES A LAW a) When the President approves the same and

signs it; b) When Congress overrides the Presidential veto;

There is no ―pocket veto‖ in our jurisdiction.

It means that the President will just ―put on his pocket‖ the bill by simply refusing to act upon the bill until the next adjournment of Congress.

Partial Veto – as a rule it is invalid, except only for particular items in an appropriation, revenue and tariff bills.

The President cannot veto a part of an item in an appropriation bill while approving the remaining portion of the item (Bengzon vs. Drilon, 208 SCRA 133).

However, a part of an item may be vetoed if the provision is inappropriate (Philippine Constitution Ass. vs. Enriquez, 235 SCRA 506).

Doctrine of Inappropriate Provision A provision that is constitutionally inappropriate for an appropriation bill may be singled out for veto even if it is no an appropriation or revenue ―item‖ (Gonzales vs. Macaraig, GR No. 87636, Nov. 19, 1990).

Legislative Veto It is a means whereby the legislature can block or modify administrative action taken under a statute. It is a form of control in the implementation of particular executive action.

c) When it lapse into a law by failure of the

President to act upon the bill within 30 days from receipt.

d) By mere approval on the third reading by Congress under section 10, Article VII of the COnstittuion (please read).


Section 28. (1) The rule of taxation shall be

uniform and equitable. The Congress shall

evolve a progressive system of taxation.

(2) The Congress may, by law,

authorize the President to fix within specified

limits, and subject to such limitations and

restrictions as it may impose, tariff rates,

import and export quotas, tonnage and

wharfage dues, and other duties or imposts

within the framework of the national

development program of the Government.

(3) Charitable institutions, churches

and personages or convents appurtenant

thereto, mosques, non-profit cemeteries, and

all lands, buildings, and improvements,

actually, directly, and exclusively used for

religious, charitable, or educational purposes shall be exempt from taxation.

(4) No law granting any tax exemption

shall be passed without the concurrence of a

majority of all the Members of the Congress.

Section 29. (1) No money shall be paid out

of the Treasury except in pursuance of an appropriation made by law.

(2) No public money or property shall

be appropriated, applied, paid, or employed,

directly or indirectly, for the use, benefit, or

support of any sect, church, denomination,

sectarian institution, or system of religion, or

of any priest, preacher, minister, other

religious teacher, or dignitary as such, except

when such priest, preacher, minister, or

dignitary is assigned to the armed forces, or

to any penal institution, or government orphanage or leprosarium.

(3) All money collected on any tax

levied for a special purpose shall be treated

as a special fund and paid out for such

purpose only. If the purpose for which a

special fund was created has been fulfilled or

abandoned, the balance, if any, shall be

transferred to the general funds of the Government.

Section 30. No law shall be passed

increasing the appellate jurisdiction of the

Supreme Court as provided in this

Constitution without its advice and concurrence.

Section 31. No law granting a title of royalty or nobility shall be enacted.

Section 32. The Congress shall, as early as

possible, provide for a system of initiative and

referendum, and the exceptions therefrom,

whereby the people can directly propose and

enact laws or approve or reject any act or law

or part thereof passed by the Congress or

local legislative body after the registration of

a petition therefor signed by at least ten per

centum of the total number of registered

voters, of which every legislative district must

be represented by at least three per centum of the registered voters thereof.

POWERS OF CONGRESS 1) General legislative power - power to propose,

enact, amend and repeal laws. Limitations:

Substantive - a) Express –

i. Bill of Rights; ii. On appropriations (sec. 25, and 29,

art. VI); iii. On taxation (sec. 28 and 29 [3], art.

VI, sec. 4 [3], Art. VI, and Art. XIV); iv. On constitutional appellate

jurisdiction of SC (sec. 30, Art. VI); v. Prohibition on the grant of nobility or

royalty title (sec. 31, Art. VI).

b) Implied – i. Non-delegation of powers; ii. Prohibition against passage of

irrepealable laws.

Procedural – a) One subject to be expressed in the title.

The title is not required to be an index of

the contents of the bill. It is sufficient compliance if the title expresses the general subject, and all the provisions are germane to that subject (Lidasan vs. COMELEC, 21 SCRA 496).

b) 3 readings on separate days, except when certified by the president to be urgent to meet a public calamity or emergency.

The certification will only dispense with the requirement not only of the printing but also of the reading of the bill on separate days (Tolentino vs. Sec. of Finance, supra).


Legislative Process Doctrine of Shifting Majority: For each House of Congress to pass a bill, only the votes of the majority of those present in the session, there being a quorum, is required. Bill – a draft of a law submitted to the consideration of a legislative body for its adoption. Resolution – formal expression of opinion, will or intent by an official body or group. Resolutions are employed with respect to matters within the exclusive authority of the law-making body or to express an attitude or opinion. It does not require the approval of the President to be effective.

Requirements as to Bills: a) One subject expressed in the title (sec. 26

[1], art. VI); b) Bills that must originate in the House of

Representatives (sec. 24, art VI). c) Procedure (sec. 26 [2], art VI).

Note: a legislative act will not be declared invalid for non-compliance with the internal rules of the House, absent showing that there was a violation of constitutional requirements or violation of rights of private individuals (Arroyo vs. De Venecia, supra). BICAMERAL CONFERENCE COMMITTEE It is within its power to include in its report an entirely new provision that is not found either in the House bill or senate bill. It can propose several provisions (Tolentino vs. Sec. of Finance).

d) Approval of bills (sec. 27 [1], art. VI). e) Effectivity (art. 2, NCC and EO No. 200,

June 18, 1987). 2) The Power of Appropriation – the spending

power or the ―power of the purse‖. While it is the President who proposes the budget, still the final say on the matter of appropriation is lodged in Congress. a) The need for appropriation.

The existence of appropriation and the availability of funds are indispensable requisites to, or conditions sine qua non for, the execution of government contracts (COMELEC, vs. Quijano-Padilla and Photokina Marketing, GR No. 151992, Sept. 18, 2002). Appropriation Law – a statute the primary and specific purpose of which is to authorize he release of public funds from the Treasury.

i. General Appropriation Law (GAL) – passed annually, intended to provide for the financial operations of the entire government during the one fiscal period.

ii. Special approbations law – designed to meet a specified purpose.

Extra-Constitutional Limitations on appropriations measures:

i. Public purpose; ii. The sum released must be determinate

or at least determinable. Constitutional limitations –

i. Specify the public purpose for which the sum is intended;

ii. Must be supported by funds actually available as certified by the national Treasurer, or to be raised by a corresponding revenue proposal included therein (Sec. 25 [4], art. VI).

Constitutional Rules on GAL:

i. Prohibition on increase of appropriation as recommended by the President;

ii. The form and content shall be prescribed by law;

iii. Prohibition on inappropriate provisions (Garcia vs. Mata, 65 SCRA 520);

iv. Prohibition against transfer of appropriations (sec. 25 [5], art.VI);

v. Prohibition against sectarian benefit (sec.28 [2], art.VI);

vi. Automatic re-appropriation (sec. 25 [7]. Art. VI).

Power of Impoundment [Executive Impoundment] The refusal of the President for whatever reason to spend funds made available by Congress. It is the failure to spend of obligate budget authority of any type. This power is derived from sec. 38 of the Administrative Code of 1987 (Philconsa vs. Enriquez, supra).

3) The Power of Taxation Limitations –

i. Taxation shall be uniform and equitable; ii. Shall evolve a progressive system of

taxation; iii. Religious, charitable and educational

exemptions; iv. Revenues of non-stock non-profit

educational institutions shall be exempt from taxes and duties;

v. Granting tax exemption shall be passed only with the concurrence of majority of ALL the members of Congress,


4) The Power to Conduct Legislative Investigation (sec. 21, Art. VI).

5) Power to Conduct Question-Hour (sec. 22,

art. VI)– 6) War powers – declaration of the existence of a

state of war (sec. 23 [1], art. VI). 7) Power to act as National Board of

Canvassers in election of the President and the Vice-President (sec.4, Art. VII).

8) Power to call a special election for the President and the Vice-President (sec. 10, Art. VII).

9) Power to judge the President’s physical fitness to discharge his functions (sec. 11, Art. VII).

10) Power to revoke or extend suspension of the privilege of the writ of habeas corpus or declaration of martial law (sec. 18, Art. VII).

11) Power to concur in Presidential amnesties (sec. 19, Art. VII).

12) Power to concur in treaties or international agreements by 2/3 vote of all the members of the Senate (sec. 21, Art. VII).

13) Power to confirm certain appointments made by the president.

14) Power to confirm the nomination of the President, in case of vacancy in the office of the vice-President (sec. 9, art. VII).

15) Power of impeachment (sec. 2, Art. XI).

16) Power relative to the natural resources (sec. 2, Art. XII).

17) Power to propose amendments to the constitution (sec. 1 and 2, Art. XVII).

ARTICLE VII

EXECUTIVE DEPARTMENT

Section 1. The executive power shall be vested in the President of the Philippines.

Executive Power: The power to enforce and administer the laws. Note: The executive power is vested in the President. Whatever is not judicial, whatever is not

legislative, is residual power exercised by the President (Marcos vs. Manglapus, GR No. 88211, Oct. 27, 1989).

The President has the residual power to protect the general welfare of the people as founded on the duty as steward of the people.

Residual Powers: It is the power borne by the President’s duty to preserve and defend the Constitution. It may also be viewed as a power implicit in the President’s duty to take care that the laws are faithfully executed. Faithful Execution Clause Faithful execution of the laws requires that the President desist from implementing the law if doing so would prejudice public interest. An example given is when through efficient and prudent management of a project, substantial savings are made. In such a case, it is sheer folly to expect the President to spend the entire amount appropriated in the law (PHILCONSA vs. Enriquez, 235 SCRA 506,

Aug. 9, 1994).

Section 2. No person may be elected

President unless he is a natural-born citizen

of the Philippines, a registered voter, able to

read and write, at least forty years of age on

the day of the election, and a resident of the

Philippines for at least ten years immediately

preceding such election.

QUALIFICATIONS: [President and V-President] i. Natural-born citizen; ii. Registered voter; iii. Able to read and write; iv. At least 40 years old on the election day; v. Resident of the Philippines for at least 10

years immediately preceding such election.

Section 3. There shall be a Vice-President

who shall have the same qualifications and

term of office and be elected with, and in the

same manner, as the President. He may be

removed from office in the same manner as the President.

The Vice-President may be appointed as a

Member of the Cabinet. Such appointment requires no confirmation.

Section 4. The President and the Vice-

President shall be elected by direct vote of

the people for a term of six years which shall

begin at noon on the thirtieth day of June


next following the day of the election and

shall end at noon of the same date, six years

thereafter. The President shall not be eligible

for any re-election. No person who has

succeeded as President and has served as

such for more than four years shall be

qualified for election to the same office at any time.

Note: The Petition asks whether private respondent Joseph Estrada, who was elected President of the Republic in the general elections held on May 11, 1998 and sought presidency again in the general elections held on May 10, 2010, is covered by the ban on the President from ―any re-election‖. Estrada was not elected President the second time he ran. Since the issue on the proper interpretation of the phrase ―any re-election‖ will be premised on a person’s second (whether immediate or not) election as President, there is no case or controversy to be resolved in this case. No live conflict of legal rights exists. Assuming an actual case or controversy existed prior to the proclamation of a President who has been duly elected in the May 10, 2010 elections, the same is no longer true today. Following the results of that election, private respondent was not elected President for the 2

nd time. Thus, any

discussion of his ―re-election‖ will simply be hypothetical and speculative. It will serve no useful or practical purpose (Pormento vs. Estrada, GR No. 191988, Aug. 31, 2010).

No Vice-President shall serve for more than

two successive terms. Voluntary renunciation

of the office for any length of time shall not

be considered as an interruption in the

continuity of the service for the full term for which he was elected.

Unless otherwise provided by law, the regular

election for President and Vice-President shall

be held on the second Monday of May.

The returns of every election for President

and Vice-President, duly certified by the

board of canvassers of each province or city,

shall be transmitted to the Congress, directed

to the President of the Senate. Upon receipt

of the certificates of canvass, the President of

the Senate shall, not later than thirty days

after the day of the election, open all the

certificates in the presence of the Senate and

the House of Representatives in joint public

session, and the Congress, upon

determination of the authenticity and due

execution thereof in the manner provided by law, canvass the votes.

The person having the highest number of

votes shall be proclaimed elected, but in case

two or more shall have an equal and highest

number of votes, one of them shall forthwith

be chosen by the vote of a majority of all the

Members of both Houses of the Congress, voting separately.

The Congress shall promulgate its rules for the canvassing of the certificates.

The Supreme Court, sitting en banc, shall be

the sole judge of all contests relating to the

election, returns, and qualifications of the

President or Vice-President, and may promulgate its rules for the purpose.

Regular Election: Second Monday of May, unless otherwise provided.

Congress, in a joint public session as

national Canvassing Board.

Sec. 18. 5, of RA 9189, The Overseas Absentee Voting Act of 2003, in so far as it grants sweeping authority to the COMELEC to proclaim all winning candidates is unconstitutional. It is Congress that has authority to proclaim the winning candidate for the positions of president and vice-president (Makalintal vs. COMELEC, GR No. 157013, July 10, 2003).

The initial determination of the authenticity

and due execution of the certificates of canvass may be validly delegated to a Joint Congressional Committee composed of members from both Houses. There is no grave abuse of discretion on such a case because the decisions and final report of the committee is subject to the approval of both Houses (Lopez, vs. Senate of the Philippines, GR No. 163556, June 8, 2004).

Even after Congress has adjourned its regular session, it may continue to perform this constitutional duty of canvassing the presidential and vice-presidential election results without need of any call for a special session by the President. This duty is an express directive by sec. 4, Art. VII of the Constitution. (Pimentel vs. Joint Committee of Congress, GR No. 163783, June 22, 2004).


Supreme Court as Presidential Electoral Tribunal The SC, sitting en banc, shall be the sole judge of all contests relating to the election, returns and qualifications of the President and vice-President.

The jurisdiction of the SC, defined by sec. 4, par. 7, Article VII would not include cases directly brought before it, questioning the qualifications of a candidate for the presidency or vice-presidency before the elections are held (Tecson vs. COMELEC, GR No. 161434, March 3, 2004).

Section 5. Before they enter on the

execution of their office, the President, the

Vice-President, or the Acting President shall take the following oath or affirmation:

"I do solemnly swear (or affirm) that I will

faithfully and conscientiously fulfill my duties

as President (or Vice-President or Acting

President) of the Philippines, preserve and

defend its Constitution, execute its laws, do

justice to every man, and consecrate myself

to the service of the Nation. So help me God."

(In case of affirmation, last sentence will be

omitted.)

Section 6. The President shall have an official

residence. The salaries of the President and

Vice-President shall be determined by law and

shall not be decreased during their tenure. No

increase in said compensation shall take

effect until after the expiration of the term of

the incumbent during which such increase

was approved. They shall not receive during

their tenure any other emolument from the Government or any other source.

PRIVILEGES OF THE PRESIDENT: a) Official residence; b) Salary – cannot be decreased during tenure; c) Immunity from suit.

He may not, however, be prevented from instituting a suit (Soliven vs. Makasiar, 167 SCRA 393).

The Doctrine of Executive Immunity: The doctrine means that the executive will be protected from personal liability for damages not only when he acts within his authority, but also when he is without authority, provided that he actually used discretion and judgment, that is, the judicial faculty in determining whether he had authority to act or not. (For example: asking for legal opinion from the Sec. of Justice before performing an act

which he believed to be within his authority). In other words, he is entitled to protection in determining the question of his authority. If he decides wrongly, he is still protected provided the question of his authority was one over which two men, reasonably qualified for that position, might honestly differ; but he is not protected if the lack of authority to act is so plain that two such men could not honestly differ over its determination. In such case, he acts, not as an executive but as a private individual, and, as such, must answer for the consequences of his act.

After his tenure, the President cannot invoke immunity from suit for civil damages arising out of acts done by him while he was president which were not performed in the exercise of official duties (Estrada vs. Desierto, GR No. 146710-15, March 2, 2001).

Even if the secretary [a cabinet member] is an alter ego of the President, he cannot invoke the President’s immunity from suit because the questioned acts are not acts of the president but merely those of a department secretary (Gloria vs. CA, GR NO. 119903, Aug. 15, 2000).

The rule is that unlawful acts of public officials are not acts of the State and the officer who acts illegally is not acting as such but stands in the same footing as any other trespasser. The intent of the framers is clear that the immunity of the President from suit is concurrent only with his tenure and not his term. Applying the foregoing rationale to this case, it is clear that former President Arroyo cannot use the immunity from suit to shield herself fro judicial scrutiny that would assess whether, within the context of amparo proceedings, she was responsible or accountable for the abduction of Rodriguez (In the Matter of the petition for the Writ of Amparo and Habeas Data in favor of Noriel Rodriguez vs. Arroyo, supra). d) Executive Privilege – right of the President and

high-level executive officials to withhold information from Congress, the courts and ultimately, the public.

The SC upheld the refusal of Neri to answer the 3 questions asked during the Senate inquiry because the information sought by the 3 questions are properly covered by the presidential communications privilege, and executive privilege was validly claimed by the President, through the executive secretary. First, the communications relate to the power to enter into an executive agreement with other countries which is quintessential and non-delegable power of the President. Second, the


communications was received by a member of the Cabinet which trough proximity test is covered by the executive privilege. Third, it was not shown that there is compelling need for the information as to justify the limitation of the President, nor was there a showing of the unavailability of the information elsewhere by an appropriate investigating authority (Neri vs. Senate Committees, GR No. 180843, March 25, 2008). PROHIBITIONS/INHIBITIONS a) Shall not receive any other emoluments from

the government or any other office; b) Shall not hold any other office or employment,

unless allowed by the Constitution; Example: the Vice-President may be

appointed to the Cabinet and the Sec. of Justice is an ex oficio member of the JBC.

EO No. 284 which allowed Cabinet members to hold two other offices in the government is unconstitutional (Civil Liberties Union vs. Executive Secretary, 194 SCRA 317).

The rule, however, does not apply to positions held in an ex oficio capacity and as required by the primary function of his office (National Amnesty Commission vs. COA, GR No. 156982, Sept. 8, 2004). Thus, not anymore entitled to additional compensation, for he is already compensated for the principal office.

c) Shall not directly or indirectly practice any other

profession, participate in any business, or be financially interested in any contract, etc.

d) Strictly avoid conflict of interest; e) Prohibition against appointment of certain

relatives (nepotism).

Section 7. The President-elect and the Vice

President-elect shall assume office at the

beginning of their terms.

If the President-elect fails to qualify, the Vice

President-elect shall act as President until the President-elect shall have qualified.

If a President shall not have been chosen, the

Vice President-elect shall act as President

until a President shall have been chosen and qualified.

If at the beginning of the term of the

President, the President-elect shall have died

or shall have become permanently disabled,

the Vice President-elect shall become President.

Where no President and Vice-President shall

have been chosen or shall have qualified, or

where both shall have died or become

permanently disabled, the President of the

Senate or, in case of his inability, the Speaker

of the House of Representatives, shall act as

President until a President or a Vice-President shall have been chosen and qualified.

The Congress shall, by law, provide for the

manner in which one who is to act as

President shall be selected until a President or

a Vice-President shall have qualified, in case

of death, permanent disability, or inability of

the officials mentioned in the next preceding paragraph.

RULES ON SUCCESSION (vacancy at the beginning of the term):

i. Death or permanent disability of the President-elect: Vice President-elect shall become President.

ii. President-elect fails to qualify: Vice President-elect shall act as President until the President-elect shall have qualified.

iii. President shall not have been chosen: Vice President-elect shall act as President until a President shall have been chosen and qualified;

iv. No President and Vice President chosen nor shall have qualified, or both shall have died or become permanently disabled: The Senate President or, in case of inability, the Speaker of the House of Representatives, until a President or a Vice President shall have been chosen and qualified.

v. In case of inability of officials mentioned: Congress shall provide for the manner in which one who is to act as President until a President or Vice President shall have qualified.

Section 8. In case of death, permanent

disability, removal from office, or resignation

of the President, the Vice-President shall

become the President to serve the unexpired

term. In case of death, permanent disability,

removal from office, or resignation of both

the President and Vice-President, the

President of the Senate or, in case of his

inability, the Speaker of the House of


Representatives, shall then act as President

until the President or Vice-President shall

have been elected and qualified.

The Congress shall, by law, provide who shall

serve as President in case of death,

permanent disability, or resignation of the

Acting President. He shall serve until the

President or the Vice-President shall have

been elected and qualified, and be subject to

the same restrictions of powers and

disqualifications as the Acting President.

VACANCY DURING THE TERM i. Death, permanent disability, removal from office,

or resignation of the President: Vice President shall become the President. Elements of Valid Resignation:

a) Intent to resign; and b) Act of relinquishment.

ii. Death, permanent disability, removal from office,

or resignation of the President and Vice President: Senate President or , in case of inability, the Speaker of the House of Representatives, shall act as President until a President or Vice President shall be elected and qualified.

iii. Inability of the officials mentioned: Congress shall, by law, provide for the manner in which one is to act as President.

Section 9. 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.

Section 10. The Congress shall, at ten

o'clock in the morning of the third day after

the vacancy in the offices of the President and

Vice-President occurs, convene in accordance

with its rules without need of a call and within

seven days, enact a law calling for a special

election to elect a President and a Vice-

President to be held not earlier than forty-five

days nor later than sixty days from the time

of such call. The bill calling such special

election shall be deemed certified under

paragraph 2, Section 26, Article V1 of this

Constitution and shall become law upon its

approval on third reading by the Congress.

Appropriations for the special election shall be

charged against any current appropriations

and shall be exempt from the requirements of

paragraph 4, Section 25, Article V1 of this

Constitution. The convening of the Congress

cannot be suspended nor the special election

postponed. No special election shall be called

if the vacancy occurs within eighteen months

before the date of the next presidential election.

Section 11. Whenever the President

transmits to the President of the Senate and

the Speaker of the House of Representatives

his written declaration that he is unable to

discharge the powers and duties of his office,

and until he transmits to them a written

declaration to the contrary, such powers and

duties shall be discharged by the Vice-President as Acting President.

Whenever a majority of all the Members of

the Cabinet transmit to the President of the

Senate and to the Speaker of the House of

Representatives their written declaration that

the President is unable to discharge the

powers and duties of his office, the Vice-

President shall immediately assume the

powers and duties of the office as Acting President.

Thereafter, when the President transmits to

the President of the Senate and to the

Speaker of the House of Representatives his

written declaration that no inability exists, he

shall reassume the powers and duties of his

office. Meanwhile, should a majority of all the

Members of the Cabinet transmit within five

days to the President of the Senate and to the

Speaker of the House of Representatives,

their written declaration that the President is

unable to discharge the powers and duties of

his office, the Congress shall decide the issue.

For that purpose, the Congress shall convene,

if it is not in session, within forty-eight hours,

in accordance with its rules and without need of call.

If the Congress, within ten days after receipt

of the last written declaration, or, if not in

session, within twelve days after it is required

to assemble, determines by a two-thirds vote

of both Houses, voting separately, that the

President is unable to discharge the powers


and duties of his office, the Vice-President

shall act as President; otherwise, the

President shall continue exercising the powers and duties of his office.

Section 12. In case of serious illness of the

President, the public shall be informed of the

state of his health. The members of the

Cabinet in charge of national security and

foreign relations and the Chief of Staff of the

Armed Forces of the Philippines, shall not be

denied access to the President during such illness.

Section 13. The President, Vice-President,

the Members of the Cabinet, and their

deputies or assistants shall not, unless

otherwise provided in this Constitution, hold

any other office or employment during their

tenure. They shall not, during said tenure,

directly or indirectly, practice any other

profession, participate in any business, or be

financially interested in any contract with, or

in any franchise, or special privilege granted

by the Government or any subdivision,

agency, or instrumentality thereof, including

government-owned or controlled corporations

or their subsidiaries. They shall strictly avoid

conflict of interest in the conduct of their office.

The spouse and relatives by consanguinity or

affinity within the fourth civil degree of the

President shall not, during his tenure, be

appointed as Members of the Constitutional

Commissions, or the Office of the

Ombudsman, or as Secretaries,

Undersecretaries, chairmen or heads of

bureaus or offices, including government-

owned or controlled corporations and their subsidiaries.

Section 14. Appointments extended by an

Acting President shall remain effective, unless

revoked by the elected President, within

ninety days from his assumption or reassumption of office.

Section 15. Two months immediately before

the next presidential elections and up to the

end of his term, a President or Acting

President shall not make appointments,

except temporary appointments to executive

positions when continued vacancies therein

will prejudice public service or endanger public safety.

NOTE: Applies only to Presidential appointments. Does not apply to local executive officials from making appointments during the last days of their tenure (De Rama vs. CA, GR No. 131136, Feb. 28, 2001). The prohibition also does not apply to vacancies in the Supreme Court Had the framers intended to extend the prohibition contained in sec. 15 to the appointment of members of the SC, they could have explicitly done so. They would have easily and surely written the prohibition made in sec. 15 as being equally applicable to the appointment of the members of the SC in article VIII itself, most likely in sec. 4 (1), Art. VIII (De Castro vs. JBC, GR No. 191002, April 20, 2010).

Section 16. The President shall nominate

and, with the consent of the Commission on

Appointments, appoint the heads of the

executive departments, ambassadors, other

public ministers and consuls, or officers of the

armed forces from the rank of colonel or

naval captain, and other officers whose

appointments are vested in him in this

Constitution. He shall also appoint all other

officers of the Government whose

appointments are not otherwise provided for

by law, and those whom he may be

authorized by law to appoint. The Congress

may, by law, vest the appointment of other

officers lower in rank in the President alone,

in the courts, or in the heads of departments,

agencies, commissions, or boards.

The President shall have the power to make

appointments during the recess of the

Congress, whether voluntary or compulsory,

but such appointments shall be effective only

until disapproved by the Commission on

Appointments or until the next adjournment of the Congress.

Does the grant to the President of the power to appoint OICs in ARMM violate the Constitution? No. The appointing power is embodied in sec. 16, Art. VII of the Constitution, which pertinently states that the President shall appoint all other officers of the government whom the President may be authorized by law to appoint. Since the President’s authority to appoint OICs emanates fro RA 10153, it falls under this group of officials that the President can appoint. Thus, the assailed law rests on clear constitutional basis (Datu Michael Abas Kida, vs.

September 14, 2014 lecture


Senate of the Philippines, GR No. 196271, Oct. 18, 2011).

Section 17. The President shall have control

of all the executive departments, bureaus,

and offices. He shall ensure that the laws be faithfully executed.

Section 18. The President shall be the

Commander-in-Chief of all armed forces of

the Philippines and whenever it becomes

necessary, he may call out such armed forces

to prevent or 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

days, suspend the privilege of the writ of

habeas corpus or place the Philippines or any

part thereof under martial law. Within forty-

eight hours from the proclamation of martial

law or the suspension of the privilege of the

writ of habeas corpus, the President shall

submit a report in person or in writing to the

Congress. The Congress, voting jointly, by a

vote of at least a majority of all its Members

in regular or special session, may revoke such

proclamation or suspension, which revocation

shall not be set aside by the President. Upon

the initiative of the President, the Congress

may, in the same manner, extend such

proclamation or suspension for a period to be

determined by the Congress, if the invasion

or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within

twenty-four hours following such

proclamation or suspension, convene in

accordance with its rules without need of a call.

The Supreme Court may review, in an

appropriate proceeding filed by any citizen,

the sufficiency of the factual basis of the

proclamation of martial law or the suspension

of the privilege of the writ or the extension

thereof, and must promulgate its decision thereon within thirty days from its filing.

A state of martial law does not suspend the

operation of the Constitution, nor supplant

the functioning of the civil courts or legislative

assemblies, nor authorize the conferment of

jurisdiction on military courts and agencies

over civilians where civil courts are able to

function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ

shall apply only to persons judicially charged

for rebellion or offenses inherent in or directly connected with invasion.

During the suspension of the privilege of the

writ, any person thus arrested or detained

shall be judicially charged within three days, otherwise he shall be released.

Section 19. Except in cases of impeachment,

or as otherwise provided in this Constitution,

the President may grant reprieves,

commutations, and pardons, and remit fines

and forfeitures, after conviction by final judgment.

He shall also have the power to grant

amnesty with the concurrence of a majority of all the Members of the Congress.

Section 20. The President may contract or

guarantee foreign loans on behalf of the

Republic of the Philippines with the prior

concurrence of the Monetary Board, and

subject to such limitations as may be

provided by law. The Monetary Board shall,

within thirty days from the end of every

quarter of the calendar year, submit to the

Congress a complete report of its decision on

applications for loans to be contracted or

guaranteed by the Government or

government-owned and controlled

corporations which would have the effect of

increasing the foreign debt, and containing

other matters as may be provided by law.

Section 21. 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.

Note: The power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such


decision is within the competence of the President alone, which cannot be encroached by the Court via a writ of mandamus (Pimentel, Jr. vs. Office of the Executive Sec., GR No. 158088, July 6, 2005). Philippines recognize the binding effect of an executive agreement even without the concurrence of the Senate: In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate. In Commissioner of Customs vs. Eastern Sea Trading (3 SCRA 351 [1961]), it was held:

x x x the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal and navigation arrangement and the settlement of claims. The validity of these has never been seriously questioned in our courts‖. Stated differently, in spite of the language of Sec. 21, Art. VII of the 1987 Constitution, the jurisprudence developed under the 1935 and the 1973 Constitutions insofar as international agreements are concerned, still prevails in this jurisdiction. Distinguish treaty from an executive agreement. a. A treaty is an international agreement involving political issues or changes of national policy. It is of a permanent character. An executive agreement embodies adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature. b. A treaty is a more formal document. An executive agreement is a less formal document such as exchange of notes, agreements and protocol. c. A treaty may pertain to subjects such as military alliance, extradition, etc. An executive agreement covers such subjects as commercial and consular relations, most favored nation rights, patent rights, trademark and copyright protection, postal and navigational arrangements and the settlement of claims. d. A treaty requires ratification by at least 2/3 of all members of the Senate. An executive agreement does not require such ratification. (Commissioner of Customs vs. Eastern Sea Trading, 3 SCRA 351).

Section 22. The President shall submit to the

Congress, within thirty days from the opening

of every regular session as the basis of the

general appropriations bill, a budget of

expenditures and sources of financing,

including receipts from existing and proposed revenue measures.

Section 23. The President shall address the

Congress at the opening of its regular

session. He may also appear before it at any

other time.

POWERS OF THE PRESIDENT (summary): 1) Executive Power – (sec. 1, art. VII)

i. The power of carrying out the law into practical operation and enforcing their due observance. It is the power to execute and to administer the laws.

ii. Power to reorganize the Office of the President; The President has the continuing authority to reorganize the national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities and to standardize salaries and materials; it is effected in good faith if it is for the purpose of economy or to make bureaucracy more efficient (MEWAP vs. Executive Sec., GR No. 160093, July 31, 2007).

iii. Residual powers; 2) The Power of Appointment – (sec. 16, art. VII)

Appointment Designation Commission

Is the selection by the authority vested with

the power, of an individual

who is to exercise the

functions of a given office.

It simply means the

imposition of additional

duties, usually by law, on a

person already in the public service

It is the written

evidence of the

appointment

CLASSIFICATIONS: a) Permanent – are those extended to persons

possessing the requisite eligibility and are thus protected by the constitutional guarantee of security of tenure.

b) Temporary – are those given to persons without eligibility, revocable at will and without necessity of just cause or a valid


investigation; made on the understanding that the appointing power has not yet decided on a permanent appointee and that the temporary appointee may be replaced at any time a permanent choice is made.

Note: temporary appointment and a designation are not subject to confirmation by the Commission on Appointments., even if given erroneously, it will not make the appointment permanent (Valencia vss. Peralta, 8 SCRA 692).

c) Regular – one made by the President while

Congress is in session, takes effect only after confirmation by the Commission on Appointments, and once approved, continues until the end of the term of the appointee.

d) Ad interim – one made while the Congress is not in session, takes effect immediately, but ceases to be valid if disapproved by the Commission on Appointments, or upon the next adjournment of Congress. Purpose: To prevent interruptions in vital government services caused by prolong vacancies in government offices.

And ad interim appointment is a permanent appointment; it takes upon immediately and can no longer be withdrawn by the President once the appointee has qualified into office (Matibag vs. Benipayo, GR No. 149036, April 2, 2002).

When an ad interim appointment is by-passed because of lack of time or failure of the Commission to organize, there is no final decision by the Commission to give or withhold its consent to the appointment. Absent such decision, the President is free to renew the ad interim appointment (Ibid).

OFFICIALS TO BE APPOINTED (with CA confirmation): i. Heads of executive departments; ii. Ambassadors, other public ministers and

consuls; iii. Officers of the armed forces from the rank

of coronel or naval captain; iv. Those other officers whose appointments

are vested in him by the Constitution. The appointment of sectoral

representative by the President requires confirmation by the CA as

required for in sec. 7, Art. XVIII (Quintos-Deles vs. Committee on Constitutional Commissions, 177 SCRA 259).

Note: The list is exclusive; Commissioner of Customs is not included in the list requiring confirmation (Sarmiento vs. Mison, 156 SCRA 549). Philippine Coast Guard is no longer part of the AFP, but is now under the DOTC, a civilian agency. Thus, no confirmation is required (Soriano vs. Lista, GR No. 153881, March 24, 2003). With prior recommendation or nomination by the JBC:

a) Members of the SC and all other judges of lower courts;

b) The Ombudsman and his 5 deputies.

Appointments solely by the President: 1. Those vested by the Constitution to the

President alone; 2. those whose appointment are not

otherwise provided by law; 3. those whom he may be authorized by

law to appoint; and 4. those other officers lower in rank whose

appointment is vested by law in the President alone.

STEPS IN APPOINTMENT PROCESS:

a) Nomination by the President; b) Confirmation by the CA; c) Issuance of the commission; d) Acceptance by the appointee.

Appointment is deemed complete only upon acceptance. Pending such acceptance, the appointment may be validly withdrawn (Lacson vs. Romero, 84 Phil. 740).

Appointment is essentially a discretionary power

and must be performed by the officer in which it is vested according to his best lights, the only condition being that the appointee, if issued a permanent appointment, should possess the minimum qualification requirements, including the required CS eligibility prescribed by law for the position (Luego vs. CSC, 143 SCRA 327).

Congress, through a law, cannot impose on the President the obligation to appoint automatically the undersecretary as her temporary alter ego (Pimentel vs. Ermita, GR No. 164978, Oct. 13, 2005).


Limitations on the Appointing Power of the President:

i. Prohibition to appoint certain relatives (sec. 13, Art. VII);

ii. Appointments extended by the acting president (sec. 14, Art VII);

iii. Prohibition on midnight appointments and appointments made for partisan political purposes (sec. 15, Art. VII).

The Power of Removal: As a general rule, the power to appoint also implies the power to remove. However, this rule does not apply to officials, which under the Constitution, requires a specific mode of removal from office [through impeachment]. Note: Where the power of removal is lodged in the President, the same may be exercised only for a cause as may be provided by law and in accordance with the prescribed administrative procedure (Villaluz vs. Zaldivar, 15 SCRA 710). Officers whose continuity in office depends upon the pleasure of the President may be replaced at any tine, but legally speaking, their separation is effected not by removal but by expiration of their term (Alajar vs. Alba, 100 Phil. 683). 3) The Power of Control over the Executive

department – sec. 17, art. VII)

Control Supervision

Is the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter (Mondano vs. Silvosa).

The power of an officer to see that subordinate officers perform their duties, and if the latter fail or neglect to fulfill them, then the former may take such action as prescribed by law to make them perform these duties.

DOCTRINE OF QUALIFIED POLITICAL AGENCY [aka ―The alter ego principle‖] All executives and administrative organizations are adjuncts of the Executive department, and the acts of the Secretaries of such departments performed and promulgated in the regular course of business are, unless disapproved or reprobated by the President, presumptively the acts of the President (DENR vs. DENR Region XII Employees, GR No. 149724, Aug. 19, 2003).

The power of the president to organize the National Government [executive department] may validly be delegated to his Cabinet members exercising control over a particular department (Ibid).

Appeal to the President from decisions of subordinate executive officers, including Cabinet members, completes exhaustion of administrative remedies, except when the doctrine of qualified political agency applies (Tan vs. Director of Forestry, 125 SCRA 302).

The power of control covers only the acts, not over the actor. Thus, the President has to abide to the law providing for the procedure for the removal of member of the classified service (Ang-Angco vs. Castillo, 9 SCRA 619).

4) The Power of General Supervision over

LGUs – (sec. 4, art. X) The president can only interfere in the affairs and activities of a local government unit he finds that the latter had acted contrary to law. The President, or any of his alter egos, cannot interfere in local affairs as long as the concerned LGUs act within the parameters of the law and the Constitution (Dadole vs. COA, GR No. 125350, Dec. 3, 2002). Sec. 187, RA 7160, which authorizes the

Sec. of Justice to review the constitutionality or legality of tax ordinance, and if warranted, to revoke it on either or both grounds, is valid, and does not confer the power of control over LGUs. He cannot substitute his own judgment for that of the LGU (Drilon vs. Lim, GR No. 112497. Aug. 4, 1994).

Sec. 4, of AO No. 327, which withholds 5% of the IRA of LGUs, is unconstitutional because the President’s power over local governments is only of general supervision (Pimentel vs. Aguirre, GR No. 132988, July 19, 2000).

5) Military Powers – (sec. 18, art. VII)

a. The Commander-in-Chief clause.

i. The ―calling-out‖ power - The only

criterion is that ―whenever it becomes necessary‖, the President may call out the armed forces. The Court cannot overrule the President’s discretion or substitute its own (IBP vs. Zamora, GR No. 141284, Aug. 15, 2000).


The President has discretionary authority to declare a ―state of rebellion‖. The Court may only look into the sufficiency of the factual basis for the exercise of the power. However, the declaration of a state of rebellion cannot diminish or violate constitutionally protected rights (Lacson vs. Perez, GR No 147780, May 10, 2001). The power to ―declare a state of rebellion‖ and calling out of the armed forces, was merely exercising a wedding of her Chief Executive and Commander-in-Chief powers (Sanlakas vs. Executive Sec., GR No. 159085, Feb. 3, 2004). The ―calling-out power‖ to prevent or suppress lawless violence is a power that the Constitution directly vests in the President. She did not need a congressional authority to exercise the same. If there is a need to pacify the people’s fears and stabilize the situation, the President has to take preventive action (Ampatuan, et al. vs. Puno, GR No. 190259, June 7, 2011). A distinction must be drawn between the President’s authority to declare ―a state of national emergency‖ and to exercise emergency powers. The exercise of emergency powers requires a delegation from Congress (David vs. Arroyo, GR No. 171396, May 3, 2006).

ii. The power to organize courts martial for the discipline of the armed forces, create military commissions for the punishment of war criminals (Ruffy vs. Chief of Staff, 75 Phil. 875).

Open Court Doctrine: Military tribunals cannot try civilians when civil courts are open and functioning (Olaguer vs. Military Commission. 34, 150 SCRA 144). However, the RTC [regular court] cannot divest the General Court Martial of jurisdiction over those charged under certain provision of the Articles of War as these are ―service connected‖ offenses or crimes (Navales vs. General Abaya, GR No 162318, Oct. 25, 2004).

b. The power to suspend the privilege of the writ of habeas corpus. i. Grounds: invasion or rebellion, when

public safety requires it.

ii. Duration: not to exceed 60 days, following which it shall be lifted, unless extended by Congress.

iii. Duty to report to Congress: within 48 hours, personally or in writing.

iv. Congress’ power: may revoke or extend, on request of the President, the effectivity of the proclamation by a majority of all its members in a joint session, voting jointly.

v. Supreme Court’s power of review – in an appropriate proceeding filed by any citizen to determine the sufficiency of the factual basis of the proclamation, within 30 days from filing.

vi. Right to bail: Not impaired. vii. Applicability: Only to persons judicially

charged for rebellion or offense inherent in or necessarily connected with invasion.

viii. Period of detention: 3 days, otherwise, he shall be released.

c. Martial Law Powers –

i. Does not suspend the operation of the Constitution.

ii. Does not supplant the functioning of civil courts;

iii. Does not authorize the conferment of jurisdiction over civilians where the civil courts are open and functioning.

iv. Does not automatically suspend the privilege of the writ of habeas corpus.

Note: Martial law power is subject to same limitations imposed on the right to suspend the privilege of the writ of habeas corpus. Ways to lift the proclamation or suspension of the privilege: a. Lifting by the President himself; b. Revocation by Congress; c. Nullification by the SC; d. by expiration of the 60-day period (by

operation of law)

6) The Pardoning Power – (sec. 19, art. VII)

i. Pardon: An act of grace which exempts

the individual on whom it is bestowed from the punishment that the law inflicts for the crime he has committed. a. Absolute b. Conditional – is in the nature of a

contract between the President and the convicted criminal. By the pardonee’s consent to the terms

Limitations


stipulated in the contract, the pardonee has placed himself under the supervision of the Chief Executive.

ii. Commutation of sentence: reduction of mitigation of the penalty.

iii. Reprieve: Postponement of a sentence or stay of execution.

iv. Parole: release from confinement, but without full restoration of his liberty, after the convict has served the minimum term of his indeterminate penalty.

v. Amnesty: Act of grace, concurred in by the legislature, usually extended to group of persons who committed political offenses, which puts into oblivion the offense itself.

To avail of the benefits of the amnesty, one must admit his guilt of the offense covered by the amnesty proclamation (Vera vs. P., 7 SCRA 152).

PARDON AMNESTY

Pardon is granted by the Chief Executive

Proclamation by the Chief Executive and concurrence of Congress

Must be pleaded and proved (private act of the president)

Need not be alleged and proved (public act which the courts can take judicial notice)

Pardon is granted only after final conviction

Can be granted generally at any time even before prosecution is commenced or after conviction

Generally available to any class of crimes

Generally granted to persons who are guilty of political offenses

Pardon looks forward and relieves the offender from the imposition of the penalty but does not work for the restoration of the rights to hold public office, or the right of suffrage, and other vestiges of the crime (like moral turpitude) unless expressly remitted in the pardon)

Looks backwards and abolishes and puts into oblivion the offense itself and the person stands before the law as though he had committed no crime Hence, the accused is not considered a recidivist (US vs. Francisco, 10 Phil. 185).

Exercise by the President: Discretionary; may

not be controlled by the legislature or reversed by the courts, unless there is a constitutional violation.

Limitations of Exercise: i. Cannot be granted in cases of impeachment

(sec. 19, Art. VII). ii. Cannot be granted in cases of violation of

election laws without the favorable recommendation of the COMELEC (sec. 5, art. IX-C).

iii. Granted only after conviction by final [and executory] judgment

The Constitution prohibits the grant of pardon to an accused during the pendency of his appeal from the judgment of conviction. To application for pardon shall be acted upon unless the appeal is withdrawn (P. vs. Bacang, 260 SCRA 44).

iv. Cannot be granted in cases of legislative

contempt as it would violate the separation of powers.

v. Cannot remit the civil liability of the convict. vi. Cannot restore public offices forfeited.

However, a pardoned elementary school principal, on consideration of justice and equity, was deemed eligible for reinstatement to the same position of principal and not to the lower position (Sabello vs. DECS, 180 SCRA 623).

7) The Borrowing Power – (Sec. 20, Art. VII)

8) The Diplomatic Power – (sec. 21, Art. VII)

Distinctions between Treaties and Executive Agreements (Commissioner of Customs vs. Eastern Sea Trading, 3, SCRA 351)

Treaty Executive Agreements

International

agreements which involve political issues

and changes of national policy and

those involving international

arrangements of a permanent character

take the form of a treaty

International agreements involving adjustments of details

carrying out well established national

policies and traditions and involving

arrangements of more or less temporary in

nature take the form of executive agreement

In treaties, formal documents require

ratification

Becomes binding through executive

action

read


Note: It is inconsequential whether the US treats the VFA as merely an executive agreement because, under international law, an executive agreement is just as binding as a treaty (Bayan vs. Executive Secretary, GR No. 138570, Oct. 10, 2000)

9) Budgetary Power – (sec. 22, Art. VII) 10) The Informing Power – (sec. 23, Art. VII)

OTHER POWERS OF THE PRESIDENT:

1) Power to call a special session (sec. 15, Art. VI). 2) Power to approve or veto bills (sec. 27, Art. VI). 3) Power to consent to deputation of government

personnel by the COMELEC (sec. 2[4], Art. IX-C).

4) Power to discipline such deputies (sec. 2 [8], Art. IX-C).

5) Emergency powers, upon delegation from Congress (sec. 23 [2], Art. VI).

6) Tariff Powers (sec. 28 [2], Art. VI). 7) The Power of Impoundment: the refusal of the

President, for whatever reason, to spend funds made available by Congress. It is the failure to spend or obligate budget authority of any type.

There are at least three principal sources: 1) The authority to impound given to him either

expressly or impliedly by Congress; 2) The executive power drawn from the President’s

role as Commander-in-Chief; and 3) The Faithful Execution Clause.

ARTICLE VIII JUDICIAL DEPARTMENT

Section 1. The judicial power shall be vested

in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts

of justice to settle actual controversies

involving rights which are legally demandable

and enforceable, and to determine whether or

not there has been a grave abuse of

discretion amounting to lack or excess of

jurisdiction on the part of any branch or instrumentality of the Government.

Limits on Judicial Power 1. Political questions; 2. Separation of powers;

3. Prohibition in giving advisory opinions. JUDICIAL REVIEW It is the power of the courts to test the validity of executive and legislative acts in light of their conformity with the Constitution. It is no an assertion of superiority by the courts over other departments, but merely an expression of the supremacy of the Constitution (Angara vs. Electoral Commission, GR No. 45081, July 15, 1936). Extra-Ordinary Jurisdiction Even if the case involves a political question, the Supreme Court (and the other courts) may still determine whether there is grave abuse of discretion, and if there is, proceed to strike down the act of the executive or the legislature. In Robles vs. House of Representatives Electoral Tribunal [HRET] (181 SCRA 780), the Supreme Court used the term ―extraordinary jurisdiction‖ in referring to the expanded powers of the judiciary under Sec. 1, Art. VIII of the 1987 Constitution. Judicial Restraint A theory of judicial interpretation that encourages judges to limit the exercise of their own power in certain cases.---xxxx---.Adherents of judicial restraint warn that under certain circumstances, the active use of judicial review has detrimental effect on the capacity of democratic system to function effectively (Justice Puno, concurring and dissenting opinion, Francisco vs. House of Representatives, GR No. 160261, Nov. 10, 2003). The inherent powers of a court to amend and

control its processes and order so as to make them conformable with law and justice includes the right to reverse itself, especially when, in its honest opinion, it has committed an error or mistake in judgment, and the to adhere to its decision will cause injustice to a party litigant (Tocao vs. CA, GR No. 127405, Sept. 20, 2001).

The Court is not precluded from re-examining its own ruling and rectifying errors of judgment if blind and stubborn adherence to res judicata would involve the sacrifice of justice to technicality (De Leon vs. CA, GR No. 127182, Dec. 5, 2001).

Section 2. The Congress shall have the

power to define, prescribe, and apportion the

jurisdiction of the various courts but may not

deprive the Supreme Court of its jurisdiction over cases enumerated in Section 5 hereof.


No law shall be passed reorganizing the

Judiciary when it undermines the security of

tenure of its Members.

JURISDICTION: The power to hear and decide a case. Note: No law shall be passed increasing the appellate jurisdiction of the SC as provided in the Constitution without its advice and concurrence (sec. 30, Art. VI).

Section 3. The Judiciary shall enjoy fiscal

autonomy. Appropriations for the Judiciary

may not be reduced by the legislature below

the amount appropriated for the previous

year and, after approval, shall be automatically and regularly released.

Constitutional safeguards to insure independence of the judiciary: 1) The SC is a constitutional body; it may not be

abolished by Congress; 2) Members of SC may be removed only by

impeachment; 3) The SC may not be deprive of minimum original

and appellate jurisdiction; 4) Non-increase of appellate jurisdiction without its

advice and concurrence; 5) SC has administrative supervision ever all

inferior courts and personnel; 6) Exclusive power to discipline judges/justices of

inferior courts; 7) Members of judiciary have security of tenure; 8) Judiciary enjoys fiscal autonomy; 9) Non reduction of appropriations below the

amount appropriated for the previous year; 10) Salaries of judges may not be reduced; 11) The SC, alone, may promulgate the Rules of

Court; 12) The members of the judiciary may not be

designated to any agency performing quasi-judicial or administrative functions;

13) The SC alone may order temporary detail of judges;

14) The Sc can appoint all officials and employees of the judiciary.

Section 4. (1) The Supreme Court shall be

composed of a Chief Justice and fourteen

Associate Justices. It may sit en banc or in its

discretion, in division of three, five, or seven

Members. Any vacancy shall be filled within ninety days from the occurrence thereof.

(2) All cases involving the constitutionality

of a treaty, international or executive

agreement, or law, which shall be heard by

the Supreme Court en banc, and all other

cases which under the Rules of Court are

required to be heard en banc, including those

involving the constitutionality, application, or

operation of presidential decrees,

proclamations, orders, instructions,

ordinances, and other regulations, shall be

decided with the concurrence of a majority of

the Members who actually took part in the

deliberations on the issues in the case and

voted thereon.

(3) Cases or matters heard by a division

shall be decided or resolved with the

concurrence of a majority of the Members

who actually took part in the deliberations on

the issues in the case and voted thereon, and

in no case without the concurrence of at least

three of such Members. When the required

number is not obtained, the case shall be

decided en banc: Provided, that no doctrine

or principle of law laid down by the court in a

decision rendered en banc or in division may

be modified or reversed except by the court sitting en banc.

“Primus Inter Pares” [First among equals] The Latin maxim indicates that a person is the most senior of a group of people sharing the same rank or office. The phrase has been used to describe the status, condition or role of the Chief Justice in many Supreme Court around the world (De Castro vs. JBC, GR No. 191002, March 17, 2010, Carpio-Morales, Dissenting Opinion). NOTE: Under the Internal Rules of the Supreme Court [A.M. No. 10-4-20-SC], secs. 3 and 4, Rule 2

Section 3. Court en banc matters and cases. The Court en banc shall act on the following matters and cases:

(a) cases in which the constitutionality or validity of any treaty, international or executive agreement, law, executive order, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question; (b) criminal cases in which the appealed decision imposes the death penalty or reclusion perpetua;


(c) cases raising novel questions of law; (d) cases affecting ambassadors, other public ministers, and consuls; (e) cases involving decisions, resolutions, and orders of the Civil Service Commission, the Commission on Elections, and the Commission on Audit; (f) cases where the penalty recommended or imposed is the dismissal of a judge, the disbarment of a lawyer, the suspension of any of them for a period of more than one year, or a fine exceeding forty thousand pesos; (g) cases covered by the preceding paragraph and involving the reinstatement in the judiciary of a dismissed judge, the reinstatement of a lawyer in the roll of attorneys, or the lifting of a judge’s suspension or a lawyer’s suspension from the practice of law; (h) cases involving the discipline of a Member of the Court, or a Presiding Justice, or any Associate Justice of the collegial appellate court; (i) cases where a doctrine or principle laid down by the Court en banc or by a Division my be modified or reversed; (j) cases involving conflicting decisions of two or more divisions; (k) cases where three votes in a Division cannot be obtained; (l) Division cases where the subject matter has a huge financial impact on businesses or affects the welfare of a community; (m) Subject to Section 11 (b) of this rule, other division cases that, in the opinion of at least three Members of the Division who are voting and present, are appropriate for transfer to the Court en banc; (n) Cases that the Court en banc deems of sufficient importance to merit its attention; and

(o) all matters involving policy decisions in the administrative supervision of all courts and their personnel.

Note: It is well-settled that the jurisdiction to try a case is to be determined by the law in force at the time of the institution of the action, not at the time of the commission of the offense. Consonant with this principle, the time o commission is not material to determining which court has jurisdiction. Its stands to reason that the administrative jurisdiction over petitioner belongs to the SC, the action having been instituted by the CSC at the time when petitioner was already a judicial employee (Ampong vs. CSC, GR No. 167916, Aug. 26, 2008).

Section 4. Division cases. All cases and matters under the jurisdiction of the Court not otherwise provided for by law, by the Rules of Court or by these Internal Rules to be cognizable by the Court en banc shall be cognizable by the Divisions.

Section 5. The Supreme Court shall have the

following powers:

(1) Exercise original jurisdiction over

cases affecting ambassadors, other public

ministers and consuls, and over petitions for

certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

(2) Review, revise, reverse, modify, or

affirm on appeal or certiorari, as the law or

the Rules of Court may provide, final judgments and orders of lower courts in:

a. All cases in which the constitutionality

or validity of any treaty, international

or executive agreement, law,

presidential decree, proclamation,

order, instruction, ordinance, or

regulation is in question.

b. All cases involving the legality of any

tax, impost, assessment, or toll, or

any penalty imposed in relation

thereto.

c. All cases in which the jurisdiction of

any lower court is in issue.

d. All criminal cases in which the penalty

imposed is reclusion perpetua or

higher.

e. All cases in which only an error or question of law is involved.


Note: this power does not include the power of the SC to review decisions of administrative bodies (Ruffy vs. Chief of Staff, supra).

The appellate jurisdiction of the SC over decisions and final orders of the Sandiganbayan is limited to questions of law (Republic vs. Sandiganbayan, GR No. 135789, Jan. 31, 2002).

(3) Assign temporarily judges of lower

courts to other stations as public interest may

require. Such temporary assignment shall not

exceed six months without the consent of the judge concerned.

(4) Order a change of venue or place of

trial to avoid a miscarriage of justice.

(5) Promulgate rules concerning the

protection and enforcement of constitutional

rights, pleading, practice, and procedure in all

courts, the admission to the practice of law,

the integrated bar, and legal assistance to the

under-privileged. Such rules shall provide a

simplified and inexpensive procedure for the

speedy disposition of cases, shall be uniform

for all courts of the same grade, and shall not

diminish, increase, or modify substantive

rights. Rules of procedure of special courts

and quasi-judicial bodies shall remain

effective unless disapproved by the Supreme Court.

Note: the integration of the Philippine Bar means the official unification of the entire lawyer population. This requires membership and financial support of every attorney as condition sine qua non to the practice of law and the retention of his name in the Roll of Attorneys of the Supreme Court (In Re Integration of the Bar, 49 SCRA 22).

The payment of dues is a necessary consequence of membership in the IBP, of which NO ONE is exempt. This means that the compulsory nature of payment of dues subsists for as long as one’s membership in the IBP remains regardless of the lack of practice of, or the type of practice, the member is engaged in (Letter of Atty. Cecillo Arevalo, Jr., Requesting Exemption from Payment of IBP Dues, BM No. 1370, May 9, 2005).

Congress cannot amend the Rules of Court

(Echegaray vs. Sec. of Justice, GR No. 132601, Jan. 19, 1999).

(6) Appoint all officials and employees of

the Judiciary in accordance with the Civil

Service Law.

Section 6. The Supreme Court shall have

administrative supervision over all courts and the personnel thereof.

Note: The Ombudsman may not initiate or investigate a criminal or administrative complaint before his office against a judge; he must first indorse the case to the SC for appropriate action (Fuentes vs. Office of the Ombudsman, GR No. 124295, Oct. 23, 2001). The investigation conducted by the Ombudsman encroaches into the SC’s power of administrative supervision over all courts and its personnel, in violation of the doctrine of separation of powers (Maceda vs. Vasquez, 221 SCRA 469). Note: Administrative proceedings before the SC are confidential in order to protect the respondent therein who may in turn out to be innocent (Godinez vs. Alano, AM RTJ-98-1409, Feb. 18, 1999).

Section 7. (1) No person shall be appointed

Member of the Supreme Court or any lower

collegiate court unless he is a natural-born

citizen of the Philippines. A Member of the

Supreme Court must be at least forty years of

age, and must have been for fifteen years or

more, a judge of a lower court or engaged in the practice of law in the Philippines.

(2) The Congress shall prescribe the

qualifications of judges of lower courts, but no

person may be appointed judge thereof

unless he is a citizen of the Philippines and a member of the Philippine Bar.

(3) A Member of the Judiciary must be a

person of proven competence, integrity, probity, and independence.

APPOINTMENT TO THE JUDICIARY QUALIFICATIONS [in general]: i. Of proven competence, integrity, probity and

independence; and ii. With the following personal qualifications –

a. Supreme Court: Natural-born citizen, at least 40 years old, 15 years as a judge or engaged in the practice of law.

b. Lower collegiate courts [CA]: Natural-born citizen, member of the Bar [same


qualifications for justices of the SC- sec. 7, BP 129].

c. Lower courts: citizen of the Philippines, and a member of the Bar. 1) RTC judges – citizen of the

Philippines, at least 35 years of age, and for at least 10 years has been engaged in the practice of law or has held public office requiring admission to the Bar as an indispensable requirement.

2) MTC judges – citizen of the Philippines, at least 30 years of age, and for at least 5 years has been engaged in the practice of law or has held public office requiring admission to the Bar as an indispensable requirement.

Note: Secs. 15 and 26 of BP 129, in so far as it requires natural-born citizens for the appointment to the RTC and MTC, respectively, is effectively modified by sec. 7 [2], Art. VIII, of the Constitution.

Section 8. (1) A Judicial and Bar Council is

hereby created under the supervision of the

Supreme Court composed of the Chief Justice

as ex officio Chairman, the Secretary of

Justice, and a representative of the Congress

as ex officio Members, a representative of the

Integrated Bar, a professor of law, a retired

Member of the Supreme Court, and a

representative of the private sector.

(2) The regular members of the Council

shall be appointed by the President for a term

of four years with the consent of the

Commission on Appointments. Of the

Members first appointed, the representative

of the Integrated Bar shall serve for four

years, the professor of law for three years,

the retired Justice for two years, and the

representative of the private sector for one year.

(3) The Clerk of the Supreme Court shall

be the Secretary ex officio of the Council and

shall keep a record of its proceedings.

(4) The regular Members of the Council

shall receive such emoluments as may be

determined by the Supreme Court. The

Supreme Court shall provide in its annual

budget the appropriations for the Council.

(5) The Council shall have the principal

function of recommending appointees to the

judiciary. It may exercise such other functions

and duties as the Supreme Court may assign to it.

Note: The duty of the JBC to submit a list of nominees before the start of the President’s mandatory 90-day period to appoint is ministerial, but the selection of the candidates whose names will be in the list to be submitted to the President lies within the discretion of the JBC (De Castro vs. JBC, supra).

Section 9. The Members of the Supreme

Court and judges of lower courts shall be

appointed by the President from a list of at

least three nominees preferred by the Judicial

and Bar Council for every vacancy. Such appointments need no confirmation.

For the lower courts, the President shall issue

the appointment within ninety days from the

submission of the list.

Section 10. The salary of the Chief Justice

and of the Associate Justices of the Supreme

Court, and of judges of lower courts shall be

fixed by law. During the continuance in office,

their salary shall not be decreased.

Note: The imposition of income tax on salaries of judges does not violate the constitutional prohibition against decrease in salaries (Nitafan vs. Tan, 152 SCRA 284).


Court and judges of the lower court shall hold

office during good behavior until they reach

the age of seventy years or become

incapacitated to discharge the duties of their

office. The Supreme Court en banc shall have

the power to discipline judges of lower courts,

or order their dismissal by a vote of majority

of the Members who actually took part in the

deliberations on the issues in the case and voted in thereon.

TENURE OF JUSTICES/JUDGES A. Supreme Court: Justices may be removed only

by impeachment. The SC said that the Special Prosecutor

(Tanodbayan) is without authority to conduct an investigation on charges against a member of the SC with the end view of filing a criminal information with him with the


Sandiganbayan, In Re: First Indorsement from Ho, Raul Gonzalez, AM No. 88-4-5433, April 15, 1998).

B. Lower Courts: Shall hold office during good

behavior until they reach the age of 70 years or become incapacitated to discharge the duties of their office.

Note: Only those cases involving dismissal of judges of lower courts are specifically required to be heard by the SC en banc. Thus, other administrative disciplinary cases may be heard by the Court, in division (P. vs. Judge Gacott, 246 SCRA 52). The grounds for the removal of a judicial officer should be established beyond reasonable doubt, particularly where the charges on which the removal is sought are misconduct in office, willful neglect, corruption, incompetence, etc. (Office of the Judicial Administrator vs. Pascual AM No. MT-93-783, July 29, 1996).


Court and of other courts established by law

shall not be designated to any agency

performing quasi-judicial or administrative function.

Section 13. The conclusions of the Supreme

Court in any case submitted to it for the

decision en banc or in division shall be

reached in consultation before the case the

case assigned to a Member for the writing of

the opinion of the Court. A certification to this

effect signed by the Chief Justice shall be

issued and a copy thereof attached to the

record of the case and served upon the

parties. Any Member who took no part, or

dissented, or abstained from a decision or

resolution must state the reason therefor. The

same requirements shall be observed by all

lower collegiate court.

Section 14. No decision shall be rendered by

any court without expressing therein clearly

and distinctly the facts and the law on which it is based.

Note: This requirement does not apply to minute resolution dismissing a petition for habeas corpus, certiorari and mandamus, provided a legal basis is given therein (Medoza vs. CFI, 66 SCRA 96).

A decision need not be a complete recital of the evidence presented. So long as the factual and legal basis are clearly and distinctly set forth

supporting the conclusions drawn therefrom, the decision arrived at is valid. The decision must state the nature of the case, summarize the facts with reference to the record, and contain a statement of applicable laws and jurisprudence and the tribunal’s statement and conclusions on the case.

No petition for review or motion for

reconsideration of a decision of the court shall

be refused due course or denied without stating the legal basis therefor.

The SC held that ―lack of merit‖ is sufficient declaration of the legal basis for the denial of petition for review or motion for reconsideration (Prudential Bank vs. Castro).

Section 15. (1) All cases or matters filed after

the effectivity of this Constitution must be

decided or resolved within twenty-four

months from date of submission for the

Supreme Court, and, unless reduced by the

Supreme Court, twelve months for all lower

collegiate courts, and three months for all other lower courts.

(2) A case or matter shall be deemed

submitted for decision or resolution upon the

filing of the last pleading, brief, or

memorandum required by the Rules of Court or by the court itself.

(3) Upon the expiration of the

corresponding period, a certification to this

effect signed by the Chief Justice or the

presiding judge shall forthwith be issued and

a copy thereof attached to the record of the

case or matter, and served upon the parties.

The certification shall state why a decision or

resolution has not been rendered or issued

within said period.

(4) Despite the expiration of the

applicable mandatory period, the court,

without prejudice to such responsibility as

may have been incurred in consequence

thereof, shall decide or resolve the case or

matter submitted thereto for determination, without further delay.

Note: While it is truly the duty of the judge to decide cases with good dispatch, he must not sacrifice for expediency’s sake the fundamental requirements of due process, nor forget that he must conscientiously endeavor each time to seek the truth, to know and


aptly apply the law, and to dispose of the controversy objectively and impartially, all to the end that justice is done to every party (Young vs. De Guzman, AM No. RTJ-96-1365, Feb. 18, 1999).

Section 16. The Supreme Court shall, within

thirty days from the opening of each regular

session of the Congress, submit to the

President and the Congress an annual report

on the operations and activities of the

Judiciary.

ARTICLE IX

CONSTITUTIONAL COMMISSION

A. COMMON PROVISIONS

Section 1. The Constitutional Commissions,

which shall be independent, are the Civil

Service Commission, the Commission on Elections, and the Commission on Audit.

Note: The CSC, COMELEC, and the COA are equally pre-eminent in their respective spheres. Neither one may claim dominance over others. In case of conflicting rulings, it is the Judiciary, which interprets the meaning of the law and ascertains which view shall prevail (CSC vs. Pobre, GR No. 160508, Sept. 15, 2004). Safeguards to insure the independence of the Commissions: 1) Constitutional creation; may not be abolished by

Congress; 2) Specifically described as independent; 3) Has powers and functions that cannot be

reduces by a statute; 4) Chairmen and members may be removed only

by impeachment; 5) Long term of service for chairmen and members; 6) No reappointment or appointment in an acting

capacity; An ad interim appointment may, however,

be extended (Matibag vs. Benipayo, supra). Reason: An ad interim appointment is a permanent appointment.

7) Relatively high salaries and may not be

decreased during tenure; 8) Enjoys fiscal autonomy;

The SC said that the ―no report, no release policy‖ may not be validly enforced against offices vested with fiscal autonomy. It means that no condition to fund releases may be imposed (CSC vs. Department of Budget

and Management, GR No. 158791, July 22, 2005)

9) May promulgate its own rules of procedure;

though subject to disapproval by the SC; 10) Chairmen and members are subject to certain

disqualifications calculated to strengthen their integrity;

11) The commissions may appoint their own officials and employees in accordance with Civil Service Law;

12) Rotational scheme of appointments. Rotational Scheme of Appointments The first appointees shall serve terms of 5, 5 and 3 years, respectively. The rationale of the scheme is to prevent the possibility of one President appointing all the commissioners. The scheme requires two conditions: [Gaminde vs. COA, GR No. 140335, Dec. 13, 2000)

i. The terms of the first commissioners should start on a common date; and

ii. Any vacancy due to death, resignation or disability before the expiration of the term should only be filled for the unexpired balance of the term.

Note: final judgment of the CSC is enforced by a Petition for Mandamus under Rule 65 of the 1997 Revised Rules of Court (UP vs. Regino, 221 SCRA 598).

Section 2. No member of a Constitutional

Commission shall, during his tenure, hold any

other office or employment. Neither shall he

engage in the practice of any profession or in

the active management or control of any

business which, in any way, may be affected

by the functions of his office, nor shall he be

financially interested, directly or indirectly, in

any contract with, or in any franchise or

privilege granted by the Government, any of

its subdivisions, agencies, or

instrumentalities, including government-

owned or controlled corporations or their subsidiaries.

INHIBITIONS/DISQUALIFICATIONS: 1) Shall not hold any other office or employment,

during tenure; 2) Shall not engage in the practice of profession; 3) Shall not engage in the active management or

control of any business which in any way may be affected by the functions of his office;

4) Shall not be financially interested, directly or indirectly, in any contract with, or in any


franchise or privilege granted by the government;

Section 3. The salary of the Chairman and

the Commissioners shall be fixed by law and shall not be decreased during their tenure.

Section 4. The Constitutional Commissions

shall appoint their officials and employees in


Section 5. The Commission shall enjoy fiscal

autonomy. Their approved annual

appropriations shall be automatically and regularly released.

Note: Its budget may be reduced by Congress below the amount appropriated for the previous year because the prohibition against reduction in appropriation, as in the case of the judiciary [sec. 3, Art. VIII] does not appear in sec. 5, Art. IX-A (Ibid).

Section 6. Each Commission en banc may

promulgate its own rules concerning

pleadings and practice before it or before any

of its offices. Such rules, however, shall not

diminish, increase, or modify substantive rights.

Section 7. Each Commission shall decide by

a majority vote of all its Members, any case

or matter brought before it within sixty days

from the date of its submission for decision or

resolution. A case or matter is deemed

submitted for decision or resolution upon the

filing of the last pleading, brief, or

memorandum required by the rules of the

Commission or by the Commission itself.

Unless otherwise provided by this Constitution

or by law, any decision, order, or ruling of

each Commission may be brought to the

Supreme Court on certiorari by the aggrieved

party within thirty days from receipt of a copy thereof.

Note: The provision of the Constitution is clear that what is required is the majority vote of ALL the members, not only of those who participated in the deliberations and voted thereon in order that a valid decision may be made (Estrella vs. COMELEC, GR No. 160465, May 27, 2004).

Section 2, Rule 64, ROC. Mode of review. — A

judgment or final order or resolution of the

Commission on Elections and the Commission on

Audit may be brought by the aggrieved party to the

Supreme Court on certiorari under Rule 65, except

as hereinafter provided. (n; Bar Matter No. 803, 17

February 1998)

Section 3, Rule 64, ROC. Time to file petition. — The petition shall be filed within thirty (30) days from notice of the judgment or final order or resolution sought to be reviewed. The filing of a motion for new trial or reconsideration of said judgment or final order or resolution, if allowed under the procedural rules of the Commission concerned, shall interrupt the period herein fixed. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of denial. Note: However, decisions of the CSC shall be appealable by certiorari to the Court of Appeals within 15 days from receipt of copy thereof. The party adversely affected shall file a petition for review on certiorari under Rule 45 of the Rules of Court (SC Revised Administrative Circular 1-95, June 1, 1995).

COMMENT: This is in effect modified by Rule 43, because the decision of the CSC is appealable by way of petition for review under Rule 42 to the CA. nevertheless, the decision of the CA may be appealed via Petition for Review on Certiorari under Rule 45 to the SC raising only pure questions of law. It would appear that there is conflict between sec. 7, Art. IX-A and Rule 43, in relation to Rule 42 ROC. The Constitution allows the filing of certiorari [an original action/a mode of review] from the decision of any of the Commissions. However, under Rule 43, in relation to Rule 42, the aggrieved party may file a petition for review [a mode of appeal]. Certiorari lies to correct errors of jurisdiction while petition for review lies to correct errors of judgment.

Section 8. Each Commission shall perform

such other functions as may be provided by law.


B. THE CIVIL SERVICE COMMISSION

Section 1. (1) The civil service shall be

administered by the Civil Service Commission

composed of a Chairman and two

Commissioners who shall be natural-born

citizens of the Philippines and, at the time of

their appointment, at least thirty-five years of

age, with proven capacity for public

administration, and must not have been

candidates for any elective position in the

elections immediately preceding their appointment.

(2) The Chairman and the

Commissioners shall be appointed by the

President with the consent of the Commission

on Appointments for a term of seven years

without reappointment. Of those first

appointed, the Chairman shall hold office for

seven years, a Commissioner for five years,

and another Commissioner for three years,

without reappointment. Appointment to any

vacancy shall be only for the unexpired term

of the predecessor. In no case shall any

Member be appointed or designated in a temporary or acting capacity.

COMPOSITION: a Chairman and 2 Commissioners. Qualifications:

i. Natural-born citizens of the Philippines; ii. At least 35 years at the time of appointment; iii. Proven capacity for public administration; iv. Not candidates for any elective position in

the election immediately preceding their appointment.

Term: 7 years, with no reappointment and no designation in temporary and acting capacity.

Section 2. (1) The civil service embraces all

branches, subdivisions, instrumentalities, and

agencies of the Government, including

government-owned or controlled corporations with original charters.

Example cases: a. UP is part of civil service having an original

charter (Up vs. Regino, 221 SCRA 598); b. Morong Water District is a quasi-public

corporation created pursuant to PD 198 (Mateo vs. CA, 247 SCRA 284);

c. Economic Intelligence and Information Bureau is a government agency (EIIB vs. CA, GR No. 129133, Nov. 25, 1998);

d. Jose M. Rodriguez Memorial Hospital is a government hospital exercising governmental functions (DOH vs. NLRC, 251 SCRA 700);

e. Philippine National Red Cross under RA 95 (Camporedondo vs. NLRC, and PNRC, GR No. 129049, Aug. 6, 1999).

(2) Appointments in the civil service shall

be made only according to merit and fitness

to be determined, as far as practicable, and,

except to positions which are policy-

determining, primarily confidential, or highly technical, by competitive examination.

CLASSES OF SERVICE: a. Career Service – Characterized by:

i. entrance based on merit and fitness to be determined, as far as practicable by competitive examinations, or based on highly technical qualifications;

ii. opportunity for advancement to higher career positions; and

iii. Security of tenure.

Note: The mere fact that the position belongs to the Career Executive Service does not automatically confer security of tenure. Such right will have to depend on the nature of appointment which, in turn, depends on his eligibility or lack of it. A person who does not have the required qualifications may be appointed only in an acting capacity, in the absence of appropriate eligibles. The appointment cannot be regarded as permanent, even if it is so designated (De Leon vs. CA, GR No. 127182, Jan. 22, 2001). Requisites to acquire security of tenure of an employee in the CES:

i. CES eligibility; and ii. Appointment to the appropriate CES

rank.

The security of tenure of employees in the CES (except 1

st and 2

nd level employees) pertains

only to rank and not to the office or the position to which they may be appointed. Thus, CESO may be transferred or reassigned from one position to another without losing his rank which follows him wherever assigned or transferred (General vs. Roco, GR NO. 143366 and 143524, Jan. 29, 2001).

b. Non-Career Service – characterized by: i. Entrance on basis other than those usual

tests utilized for the career service;


ii. Tenure is limited to a period specified by law;

iii. Or co-terminus with that of the appointing authority or subject to his pleasure;

iv. Or limited to the duration of a particular project for which purpose the employment was made.

Officers embraced in the non-career service: a. Elective officials and their personal and

confidential staff; b. Department heads and officials of cabinet rank

who hold office at the pleasure of the President and their personal and confidential staff;

c. Chairmen and members of commissions and boards with fixed terms of office, and their personal and confidential staff;

d. Contractual personnel or those whose employments in government is in accordance with a special contract to undertake a specific work or job requiring special technical skills not available in the employing agency to be accomplished within a specific period not exceeding one year, under their own responsibility, with minimum direction and supervision;

e. Emergency and seasonal personnel. Note: The classification of a particular position as policy-determining, primarily confidential or highly technical amounts to no more than an executive or legislative declaration that is NOT conclusive upon the court, the true test being the nature of the position (PAGCOR vs. Rilloraza, GR No. 141141, June 25, 2001). Exempt from Competitive Examination:

a. Policy-determining – where the officer lays down principal or fundamental guidelines or rules, or formulates a method of action for government or any of its subsidiaries;

b. Primarily confidential – denotes primarily close intimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings or betrayals on confidential matters of state. Examples:

i. City legal officer (Hilario vs. CSC, 243 SCRA 206);

ii. Security guards of a city vice mayor (Borres vs. CA, 153 SCRA 120);

Proximity Rule: The occupant of a particular position could be considered a confidential employee if the predominant reason why he was chosen was that the appointing authority believes that he can share a close intimate relationship with the occupant which ensures

freedom of discussion without fear of embarrassment or misgivings of possible betrayals of personal trust or confidential matters of the State. c. Highly technical – requires possession of

technical skill or training in a supreme or superior degree.

The position of city legal counsel of the PNB was declared to be primarily confidential and highly technical (Bessa vs. PNB, 33 SCRA 330).

DISCRETION OF THE APPOINTING AUTHORITY: Even in the career service, where the appointee possesses the minimum qualification requirements prescribed by law for the position, the appointing authority has the discretion who to appoint (Luego vs. CSC, supra).

The discretion includes the also the ―nature or character of appointment to be issued – whether temporary or permanent.

Thus, the CSC cannot direct the appointment of its own choice; even on the ground that the latter is more qualified than the choice of the appointing authority (Central Bank vs. CSC, 171 SCRA 744).

The SC held that the CSC cannot convert temporary appointment to permanent one. To allow otherwise would constitute an arrogation of a power belonging to the appointing authority. However, it may approve as merely temporary an appointment intended to be permanent where the appointee does not possess the requisite eligibility and the exigency of the service demands that it be filled up, even in a temporary capacity (Province of Camarines Sur vs. CA, 246 SCRA 281)

Note: Even if officers and employees in the career service enjoy the right to preference in promotion, it is NOT mandatory that the vacancy be filled by promotion.

Rule of the CSC: All that the Commission is authorized to do is to check if the appointee possesses the qualifications and appropriate eligibility: if he does, his appointment is approved; if not, it is disapproved (Lopez vs. CSC, 194 SCRA 269).

On its own, the CSC does not have the power to terminate employment or to drop members from the rolls.


A substantive requirement under sec. 11, Omnibus Civil Service Rules and Regulations is that an appointment should be submitted to the CSC within 30 days from issuance; otherwise, it is ineffective (Oriental Mindoro vs. Macaraig, GR No. 152017, Jan. 15, 2004).

Both the appointing authority and the appointee are the real parties in interest, and both have legal standing, in a suit assailing the CSC order disapproving an appointment. This is despite CSC Memo. Cir. 40, series 1998, which provides that only the appointing authority has the right to challenge the CSC’s disapproval of an appointment (Abella, Jr. vs. CSC, supra). Reasons: i. The disapproval is a challenge to the

appointing authority’s discretion; and ii. Although the appointee has no vested

right to the office, he stands to be adversely affected because his eligibility is being questioned (Ibid).

(3) No officer or employee of the civil

service shall be removed or suspended except

for cause provided by law.

Note: The grounds and the procedure for investigation of charges and the discipline of career civil service officers and employees are provided in the Civil Service Law. Non- compliance therewith constitutes denial of the right to security of tenure.

Unconsented transfer of the officer, resulting in demotion in rank or salary is a violation of the security of tenure clause (Palma-Fernandez, vs. de la Paz, 160 SCRA 751).

But where the appointment of a principal does not refer to a particular school, re-assignment does not offend the constitutional guarantee (DECS vs. CA, 183 SCRA 555).

When the employee is illegally dismissed, and his reinstatement is later ordered by the Court, for all intents and purposes he is considered as not having left his office, and notwithstanding the silence of the decision, he is entitled to payment of back salaries (Del Castillo vs. CSC, GR No. 112513, Aug. 21, 1997).

However, where the reinstatement is ordered by the Court not as a result of exoneration but merely as an act of liberality of the CA, the claim for back salaries must be denied. The principle of ―no work, no pay‖ will apply (Balitaosan vs. Sec. of DECS, GR No. 138238, Sept. 2, 2003).

A valid abolition of office [must not be pretended but real abolition] does not violate the constitutional guarantee of security of tenure (De la Llana vs. Alba).

Under the Rules of Court, the officer or employee who has been unlawfully ousted from his office ahs one year within which to file an action in court to recover is office. However, on ground of equity, the SC allowed a suit filed after 9 years from date of unlawful dismissal (Cristobal vs. Melchor, 78 SCRA 175).

(4) No officer or employee in the civil

service shall engage, directly or indirectly, in

any electioneering or partisan political

campaign.

Note: The Civil Service Law prohibits engaging directly or indirectly in any partisan political activity or taking part in any election except to vote, or to use official authority or influence to coerce the political activity of any person or body. But this does not prevent the expression of views on current political problems or issues, or mention of names of candidates for public office whom the public officer supports.

This prohibition covers military in the active service, but not reservists [sec. 5 (3), Art. XVI] (Cailles vs. Bonifacio, 65 Phil. 328). Officers Exempt: Public officers and employees holding political offices who are allowed to take part in political and electoral activities, except to solicit contributions from their subordinates or commit prohibited acts under the Election Code (sec. 45, CSL).

(5) The right to self-organization shall not

be denied to government employees.

While the right to organize and join unions, associations or societies cannot be curtailed, government employees may not engage in strikes to demand changes in the terms and conditions of employment because the terms and conditions are provided b y law (ACT vs. Cariño, 200 SCRA 323).

See also the discussions under the Labor Law Reviewer.

(6) Temporary employees of the

Government shall be given such protection as may be provided by law.


Section 3. The Civil Service Commission, as

the central personnel agency of the

Government, shall establish a career service

and adopt measures to promote morale,

efficiency, integrity, responsiveness,

progressiveness, and courtesy in the civil

service. It shall strengthen the merit and

rewards system, integrate all human

resources development programs for all levels

and ranks, and institutionalize a management

climate conducive to public accountability. It

shall submit to the President and the

Congress an annual report on its personnel

programs.

Note: In the exercise of its powers to implement RA 6850 [granting civil service eligibility to employees under provisional or temporary status who have rendered seven years of efficient service], the CSC enjoys wide latitude of discretion, and may not be compelled by mandamus to issue such eligibility (Torregoza vs. CSC, 211 SCRA 230).

Under the Administrative Code of 1987, the CSC has the power to hear and decide administrative cases instituted before it or on appeal, including contested appointments. It includes the authority to recall an appointment initially approved in disregard of applicable provisions of the Civil Service laws and regulations (Debulgado vs. CSC, 237 SCRA 184).

The Commission has original jurisdiction to hear and decide a complaint for cheating in the Civil Service examinations committed by government employees (Cruz vs. CSC, GR No. 144464, Nov. 22, 2001).

The RTC has no jurisdiction over personnel

actions. The decisions of lower level officials, in cases involving personnel actions, is appealed to the agency head, then to the CSC (Olanda vs. Bugayong, GR No. 140917, Oct. 10, 2003).

Section 4. All public officers and employees

shall take an oath or affirmation to uphold and defend this Constitution.

Section 5. The Congress shall provide for the

standardization of compensation of

government officials and employees, including

those in government-owned or controlled

corporations with original charters, taking into

account the nature of the responsibilities

pertaining to, and the qualifications required

for, their positions.

See RA 6758, An Act Prescribing a Revised Compensation and Classification System in the Government.

Thus, the discretion of the Philippine Postal Corporation Board of Directors on matters of personnel compensation is not absolute; the salary structure of its personnel must strictly conform with RA 6758, in relation to the General Appropriations Act (Intia vs. COA, GR No. 131529, April 30, 1999).

Section 6. No candidate who has lost in any

election, shall within one year after such

election, be appointed to any office in the

Government or any Government-owned or

controlled corporations or in any of their subsidiaries.

Note: Under the Local Government Code of 1991, a similar provision is found. However, the prohibition does not extend to persons who are lost in a ―barangay election‖. There is an apparent conflict between such provision with the Constitution.

Section 7. No elective official shall be eligible

for appointment or designation in any

capacity to any public office or position during his tenure.

The SC declared as unconstitutional the provision in the law creating the Subic Bay Metropolitan Authority which mandated that the City Mayor of Olongapo as the first administrator (Flores vs. Drilon).

Notice that with respect to elective officials, the prohibition is absolute.

Unless otherwise allowed by law or by the

primary functions of his position, no

appointive official shall hold any other office

or employment in the Government or any

subdivision, agency or instrumentality

thereof, including Government-owned or controlled corporations or their subsidiaries.

Note: Where the post are held in an ex-oficio capacity as provided by law, or as required by the primary functions of his position, there is no violation, because the other posts do not comprise ―any other office‖ but are properly and imposition of additional duties and functions on the said public officer. However, the same is subject to the prohibition against double compensation (National Amnesty Commission vs. CA, GR No. 156982, Sept. 8, 2004).


Section 8. No elective or appointive public

officer or employee shall receive additional,

double, or indirect compensation, unless

specifically authorized by law, nor accept

without the consent of the Congress, any

present, emolument, office, or title of any kind from any foreign government.

Pensions or gratuities shall not be considered

as additional, double, or indirect compensation.

Note: The 2nd

sentence simply means that the retiree can continue to receive such pension or gratuity even after he accepts another government position to which another compensation is attached. But he cannot credit his years of service in the judiciary [for which he nor receives pension] in the computation of the separation pay to which he may be entitled under RA 7924 for the termination of his last employment (Santos vs. CA, GR No. 139792, Nov. 22, 2000)

C. THE COMMISSION ON ELECTIONS

Section 1. (1) There shall be a Commission

on Elections composed of a Chairman and six

Commissioners who shall be natural-born



age, holders of a college degree, and must

not have been candidates for any elective

positions in the immediately preceding

elections. However, a majority thereof,

including the Chairman, shall be members of

the Philippine Bar who have been engaged in the practice of law for at least ten years.






appointed, three Members shall hold office for

seven years, two Members for five years, and

the last Members for three years, without

reappointment. Appointment to any vacancy

shall be only for the unexpired term of the

predecessor. In no case shall any Member be

appointed or designated in a temporary or acting capacity.

COMPOSITION: A chairman and 6 Commissioners. Qualifications:

1) Natural-born citizen; 2) At least 35 years of age;

3) Holders of college degree; 4) Not have been candidates in the

immediately preceding election; 5) Majority of the members, including the

Chairman, must be members of the Bar who have been engaged in the practice of law for at least 10 years.

Appointment: By the President with the consent of the Commission on Appointments. Term: 7 years, without reappointment or designation in a temporary or acting capacity.

Section 2. The Commission on Elections shall

exercise the following powers and functions:

(1) Enforce and administer all laws and

regulations relative to the conduct of an

election, plebiscite, initiative, referendum,

and recall.

Where the subject of the action is the enforcement of provisions of the OEC, the case is within the exclusive jurisdiction of the COMELEC, not the regular courts (Gallardo vs. Judge Tabamo, 218 SCRA 253).

The power includes the ―ascertainment of the identity of a political party and its legitimate officers (Laban ng Demokratikong Pilipino vs. COMELEC, GR No. 161265, Feb. 24, 2004).

However, this broad administrative powers does

not authorize the COMELEC, motu proprio, without the proper proceedings, to deny due course to or cancel a COC filed in due form (Cipriano vs. COMELEC, GR No. 158830, Aug. 10, 2004).

The power of direct control and supervision of

the DILG over SK elections does not contravene the Constitutional grant of powers to the COMELEC (Alunan vs. Miraso, GR No. 122250 & 122258, July 21, 1997).

The COMELEC has the authority to annul the

results of a plebiscite (Buac vs. COMELEC, GR No. 155855, Jan. 26, 2004).

The COMELEC is without authority to re-

apportion the congressional districts, as only Congress is vested with such power (Montejo vs. COMELEC, 242 SCRA 415).

Secs. 17.1, 19, and 25 of RA 9189 [Overseas Absentee Voting Act of 2003], in so far as they


relate to the creation of the Joint Congressional Oversight Committee, and the grant to it of the power to review, revise, amend and approve the Implementing Rules and Regulations promulgated by the COMELEC, were declared unconstitutional for violating the independence of the COMELEC (Makalintal vs. COMELEC, GR No. 157013, July 10, 2003).

Power to declare failure of election: declared only in the following instances – (Sison vs. COMELEC, GR No. 134096, March 3, 1999) i. The election in any polling place has not

been held on the date fixed on account of force majeure, violence, terrorism, fraud or other analogous causes;

ii. The election in any polling place has been suspended before the hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud or other analogous causes;

iii. After the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other analogous causes

Requisites for a petition to declare failure

of election: The petition must show on its face – (Mitmug vs. COMELEC, 230 SCRA 54) 1) That no voting has taken place in the

precinct on the date fixed by law or, even if there was voting, the election nevertheless results in a failure to elect; and

2) The votes not cast would affect the results of the election.

Jurisdiction to entertain petition to

declare failure of election: The COMELEC, sitting en banc, motu proprio or upon a verified petition, and with a hearing summary in nature.

Nature of the Petition: It is neither an election protest nor a pre-proclamation controversy (Borja vs. COMELEC, 260 SCRA 604).

When to File Petition: no law provides for a

reglementary period within which to file a petition for the annulment of an election if there has been NO proclamation yet (Loong vs. COMELEC, 257 SCRA 1).

For the validity of an election, it is essential that the voters have notice on some form, either actual or

constructive, of time, place, and purpose thereof. This becomes stricter in cases of special elections (Lucero vs. COMELEC). Thus, the COMELEC should see to it that –

i. It should not be later than 30 days after the cessation of the cause of the postponement or suspension of the election or failure to elect; and

The rule is not mandatory. The COMELEC has residual powers to conduct special elections even beyond the deadline prescribed by law when the dame cannot be reasonably held within the period prescribed (Sambrani vs. COMELEC, GR No. 160427, Sept. 15, 2004).

ii. It should be reasonable close to the date of the election not held, suspended or which resulted in failure to elect.

The COMELEC is not authorized to make an unofficial quick count of presidential election results. The assailed resolution usurps, in the guise of an ―unofficial‖ tabulation of election results based on a copy of the election returns, the sole and exclusive authority of Congress to canvass the votes for the president and vice-president (Brillantes vs. COMELEC, GR No. 163193, June 15, 2004).

On the COMELEC’s Jurisdiction to Order Special Elections The power to fix the date of elections is essentially legislative in nature. By so doing, Congress itself has made a policy decision in the exercise of its legislative wisdom that it shall not call special elections as an adjustment measure in synchronizing the ARMM elections with other elections. After Congress has so acted, neither the executive nor the Judiciary can act to the contrary by ordering special elections instead at the call of the COMELEC. The SC, particularly, cannot make this call without thereby supplanting the legislative decision and effectively legislating> The COMELEC has no power to call for the holding of special elections unless pursuant to a specific statutory grant (Datu Michael Abas Kida vs. Senate, GR No. 196271, Oct. 18, 2011).

(2) Exercise exclusive original jurisdiction

over all contests relating to the elections,

returns, and qualifications of all elective

regional, provincial, and city officials, and

appellate jurisdiction over all contests

involving elective municipal officials decided

by trial courts of general jurisdiction, or


involving elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the

Commission on election contests involving

elective municipal and barangay offices shall be final, executory, and not appealable.

The COMELEC shall have exclusive jurisdiction over all –pre-proclamation controversies [sec. 242, BP 881]. The possibility of conflict of jurisdiction between the COMELEC and the HRET and SET regarding contests involving congressional elections has been foreclosed by sec. 15, RA 7166, which prohibits pre-proclamation controversies in national offices, except of questions involving the composition and proceedings of the Board of Canvassers. Besides, see Aquino vs. COMELEC, supra, which delineated the jurisdictional boundaries between COMELEC and the Electoral Tribunals.

However, the COMELEC is without authority to

partially or totally annul a proclamation or to suspend the effects of a proclamation without notice and hearing, as this would violate due process clause (Bince vs. COMELEC, 218 SCRA 782).

In the exercise of its exclusive appellate jurisdiction, the COMELEC has the power to issue writs of prohibition, mandamus and certiorari because of the last part of sec. 50, BP 697, and not had not been repealed by BP 881 (Relampagos vs. Cumba, 243 SCRA 690).

EXCLUSIVE APPELLATE JURISDICTION RA 6679, in so far as its grants appellate jurisdiction to the RTC over decisions of MTCs and/or MeTCs in electoral cases involving elective barangay officials is unconstitutional (Flores vs. COMELEC, 184 SCRA 484). Note: Under the COMELEC Rules of Procedure, the mere filing of the notice of appeal is not enough; it should be accompanied by payment of the correct amount of appeal fee, in order that the appeal may be deemed perfected. However, the rule is merely permissive. The COMELEC may refuse to take action until the docket fees are paid or outrightly dismissed the case (Sunga vs. COMELEC, 288 SCRA 76). Execution Pending Appeal The COMELEC cannot deprive the RTC of its competence to order execution of judgment pending appeal, because the mere filing of an appeal does not divest the trial court of its

jurisdiction over a case and the authority to resolve pending incidents. To deprive the trial courts of their discretion to grant execution pending appeal would be to bring back the ghost of the grab-the-proclamation, prolong the protest techniques so often resorted to by devious politicians in the past in their efforts to perpetuate their hold on an elective public office (Santos vs. COMELEC, GR No. 155618, March 26, 2003). Some Valid Reasons to Grant Execution Pending Appeal: (Navarosa vs. COMELEC, GR No. 157957, Sept. 18, 2003) –

i. The public interest involved; ii. The will of the electorate; iii. Shortness of the remaining portion of

the term; iv. Length of time that the election contest

has been pending.

The provision which allows execution pending appeal must be strictly construed against the movant. The reasons allowing immediate execution must be of such urgency as to outweigh the injury or damage of the losing party should such party secure a reversal of the judgment on appeal (Camlian vs. COMELEC, 271 SCRA 757). The motion for execution pending appeal should be filed before the expiration of the period for appeal (Relampagos vs. Cumba, supra). Judgments which may be executed pending appeal need not only be those rendered by the trial court, but by the COMELEC as well (Balajonda vs. COMELEC, GR No. 166032, Feb. 28, 2005). Power to Cite for Contempt: The COMELEC has the statutory power to cite for contempt which may be exercised only while it is engaged in the performance of quasi-judicial functions (Guevara vs. COMELEC, 104 Phil. 269).

(3) Decide, except those involving the

right to vote, all questions affecting elections,

including determination of the number and

location of polling places, appointment of

election officials and inspectors, and registration of voters.

It was held that while changes in the location of polling places may be initiated by the written petition of the majority of the voters, or by agreement of all the political parties, ultimately, it


is COMELEC, that determines whether a change is necessary after due notice and hearing (Cawasa vs. COMELEC, GR No. 150469, July 3, 2002).

In the same case, the SC likewise characterized as a grave electoral irregularity the appointment of military personnel as members of the BEI. There is no legal basis for the replacement of the duly constituted members of the BEI who were public school teachers.

The case questioning the validity of the COMELEC Resolution No. 2987, providing for the rules to govern the conduct of the plebiscite relative to the ordinance abolishing a barangay – being merely an incident of the COMELEC’s inherent administrative functions – may be taken cognizance by the RTC (Salva vs. Makalintal, GR No. 132603, Sept. 18, 2000).

(4) Deputize, with the concurrence of the

President, law enforcement agencies and

instrumentalities of the Government,

including the Armed Forces of the Philippines,

for the exclusive purpose of ensuring free,

orderly, honest, peaceful, and credible elections.

Note: Read together with no. 9, the power to recommend disciplinary action.

(5) Register, after sufficient publication,

political parties, organizations, or coalitions

which, in addition to other requirements,

must present their platform or program of

government; and accredit citizens' arms of

the Commission on Elections. Religious

denominations and sects shall not be

registered. Those which seek to achieve their

goals through violence or unlawful means, or

refuse to uphold and adhere to this

Constitution, or which are supported by any

foreign government shall likewise be refused

registration.

Financial contributions from foreign

governments and their agencies to political

parties, organizations, coalitions, or

candidates related to elections, constitute

interference in national affairs, and, when

accepted, shall be an additional ground for

the cancellation of their registration with the

Commission, in addition to other penalties

that may be prescribed by law.

See RA 7941, The Part List System Act.

(6) File, upon a verified complaint, or on

its own initiative, petitions in court for

inclusion or exclusion of voters; investigate

and, where appropriate, prosecute cases of

violations of election laws, including acts or

omissions constituting election frauds, offenses, and malpractices.

The Power TO Investigate and Prosecute Violation of Election Laws - The trial court was in error when it dismissed an information filed by the Election Supervisor of Dumaguete City because the latter failed to comply with the order of the court to secure the concurrence/approval of the Provincial Prosecutor in the filing of the information. Such concurrence is not necessary (P. vs. Judge Inting, 187 SCRA 788). However, the COMELEC, may validly delegate

the power to prosecute to the Provincial Fiscal as it did in Resolution No. 1862, dated March 2, 1987 (P. vs. Judge Basilia, 179 SCRA 87).

The finding of probable cause in the prosecution of election offenses rests in the COMELEC’s sound discretion (Baytan vs. COMELEC, GR No. 153945 Feb. 4, 2003).

The power includes the authority to decide whether or not to appeal the dismissal of a criminal case by the trial court. The Chief State Prosecutor – who may have been designated by the COMELEC to prosecute a criminal action – merely derives his authority from the Commission. It is beyond his power to oppose the appeal made by the COMELEC (COMELEC vs. Silva, 286 SCRA 177).

(7) Recommend to the Congress effective

measures to minimize election spending,

including limitation of places where

propaganda materials shall be posted, and to

prevent and penalize all forms of election

frauds, offenses, malpractices, and nuisance

candidacies.

(8) Recommend to the President the

removal of any officer or employee it has

deputized, or the imposition of any other

disciplinary action, for violation or disregard

of, or disobedience to, its directive, order, or decision.

Note: The administrative case against the petitioner, taken by the COMELEC is in relation to the


performance of his duties as election canvasser and not as a city prosecutor. It is the COMELEC, being in the best position to assess how its deputized officials perform, that should conduct the administrative inquiry. To say that the COMELEC is without jurisdiction would be to unduly deny to it the proper and sound exercise of its recommendatory power (Tan vs. COMELEC, 237 SCRA 353).

(9) Submit to the President and the

Congress, a comprehensive report on the

conduct of each election, plebiscite, initiative, referendum, or recall.

Note: For Statutory Powers of the COMELEC, see secs. 52 and 57, BP 881.

Section 3. The Commission on Elections may

sit en banc or in two divisions, and shall

promulgate its rules of procedure in order to

expedite disposition of election cases,

including pre- proclamation controversies. All

such election cases shall be heard and

decided in division, provided that motions for

reconsideration of decisions shall be decided

by the Commission en banc.

CASES TO BE DECIDED IN DIVISION: 1) All election cases, including pre-proclamation

contests (Sarmiento vs. COMELEC, 212 SCRA 307);

2) Petition to cancel a certificate of candidacy (Garvida vs. Sales, GR No. 122872, Sept. 10, 1997);

3) Appealed cases from RTC, MTC in election protest/quo warranto proceedings (Abad vs. COMELEC, GR No. 128877, Dec. 10, 1999);

4) A petition for certiorari filed with the Commission from a decision of RTC [or MTC] (Soller vs. COMELEC, GR No. 139853, Sept. 5, 2000). Exceptions: i. A petition for the correction of manifest

errors alleges an erroneous copying of figures from the election return to the Statement of Votes by precinct. Such demands only the exercise of the administrative power of the COMELEC. Hence, COMELEC en banc, may properly assume jurisdiction (Jaramilla vs. COMELEC, GR No. 155717, Oct. 23, 2003).

ii. The power of the COMELEC to prosecute cases of violation of election laws involves merely the exercise of administrative powers which may be directly exercised by the COMELEC en banc (Baytan vs. COMELEC, GR No. 153945, Feb. 4, 2003).

iii. Petition for postponement, declaration of failure of election and the calling of special elections (Loong vs. COMELEC, GR No. 133676, April 14, 1999).

iv. When the petitioner invoked the jurisdiction of the COMELEC en banc and participated in its proceedings, he is estopped to question the jurisdiction (Ramirez vs. COMELEC, GR No. 122013, march 26, 1997).

Thus, the rule that all election cases, including

pre-proclamation cases, should first be decided by the COMELEC in division applies only when the COMELEC exercises adjudicatory or quasi-judicial functions, not when it exercises purely administrative functions (Municipal Board of Canvassers vs. COMELEC, GR No. 150946, Oct. 23, 2003).

Only decisions of the COMELEC en banc may be brought to the SC on certiorari.

Only decisions of the COMELEC made in the exercise of adjudicatory or quasi-judicial power may be brought to the SC. Indeed, determinations made by the COMELEC which are merely administrative in character, may be challenged in an ordinary action before trial courts (Filipinas Engineering vs. Ferrer, 135 SCRA 25).

The COMELEC en banc shall promulgate rules concerning pleadings and practice before it or before any of its offices, but they must no diminish, increase or modify substantive rights.

The COMELEC has the authority to suspend the reglementary periods provided by its rules, or the requirement of certificate of non-forum shopping, in the interest of justice and speedy resolution of cases. It has also the authority to dismiss a case for non-payment of filing fees (Jaramilla vs. COMELEC, supra).

Section 4. The Commission may, during the

election period, supervise or regulate the

enjoyment or utilization of all franchises or

permits for the operation of transportation

and other public utilities, media of

communication or information, all grants,

special privileges, or concessions granted by

the Government or any subdivision, agency,

or instrumentality thereof, including any

government-owned or controlled corporation

or its subsidiary. Such supervision or

regulation shall aim to ensure equal

opportunity, time, and space ,and the right to


reply, including reasonable, equal rates

therefor, for public information campaigns

and forums among candidates in connection

with the objective of holding free, orderly, honest, peaceful, and credible elections.

Section 5. No pardon, amnesty, parole, or

suspension of sentence for violation of

election laws, rules, and regulations shall be

granted by the President without the

favorable recommendation of the

Commission.

Section 6. A free and open party system

shall be allowed to evolve according to the

free choice of the people, subject to the provisions of this Article.

Read together with the following provisions: i. Sec. 7, Art. IX-C; ii. Sec. 8, Art. IX-C; iii. Sec. 5 [2], Art. VI; iv. RA 7941;

Section 7. No votes cast in favor of a political

party, organization, or coalition shall be valid,

except for those registered under the party-list system as provided in this Constitution.

Section 8. Political parties, or organizations

or coalitions registered under the party-list

system, shall not be represented in the

voters' registration boards, boards of election

inspectors, boards of canvassers, or other

similar bodies. However, they shall be entitled

to appoint poll watchers in accordance with law.

Section 9. Unless otherwise fixed by the

Commission in special cases, the election

period shall commence ninety days before the

day of election and shall end thirty days thereafter.

Section 10. Bona fide candidates for any

public office shall be free from any form of harassment and discrimination.

Section 11. Funds certified by the

Commission as necessary to defray the

expenses for holding regular and special

elections, plebiscites, initiatives, referenda,

and recalls, shall be provided in the regular or

special appropriations and, once approved,

shall be released automatically upon

certification by the Chairman of the Commission

D. THE COMMISSION ON AUDIT

Section 1. (1) There shall be a Commission

on Audit composed of a Chairman and two

Commissioners, who shall be natural-born



age, Certified Public Accountants with not less

than ten years of auditing experience, or

members of the Philippine Bar who have been

engaged in the practice of law for at least ten

years, and must not have been candidates for

any elective position in the elections

immediately preceding their appointment. At

no time shall all Members of the Commission belong to the same profession.






appointed, the Chairman shall hold office for

seven years, one Commissioner for five years,

and the other Commissioner for three years,

without reappointment. Appointment to any

vacancy shall be only for the unexpired

portion of the term of the predecessor. In no

case shall any Member be appointed or designated in a temporary or acting capacity.

COMPOSITION: A Chairman and two Commissioners. Qualifications:

1) Natural-born citizen; 2) At least 35 years of age; 3) CPAs with not less than 10 years of auditing

experience, or members of the Bar, who have been engaged in the practice of law for at least 10 years;

4) Must not be candidates in the election immediately following their appointment;

5) At no time shall all members belong to the same profession.

Appointment: By the President, with the consent of the Commission on Appointments. Term: 7 years, without re-appointment or designation in temporary or acting capacity.

Section 2. (1) The Commission on Audit shall

have the power, authority, and duty to


examine, audit, and settle all accounts

pertaining to the revenue and receipts of, and

expenditures or uses of funds and property,

owned or held in trust by, or pertaining to,

the Government, or any of its subdivisions,

agencies, or instrumentalities, including


with original charters, and on a post- audit basis:

a. constitutional bodies, commissions and

offices that have been granted fiscal

autonomy under this Constitution;

b. autonomous state colleges and

universities;

c. other government-owned or controlled

corporations and their subsidiaries; and

d. such non-governmental entities receiving

subsidy or equity, directly or indirectly,

from or through the Government, which

are required by law or the granting

institution to submit to such audit as a

condition of subsidy or equity. However,

where the internal control system of the

audited agencies is inadequate, the

Commission may adopt such measures,

including temporary or special pre-audit,

as are necessary and appropriate to

correct the deficiencies. It shall keep the

general accounts of the Government and,

for such period as may be provided by

law, preserve the vouchers and other supporting papers pertaining thereto.

(2) The Commission shall have exclusive

authority, subject to the limitations in this

Article, to define the scope of its audit and

examination, establish the techniques and

methods required therefor, and promulgate

accounting and auditing rules and regulations,

including those for the prevention and

disallowance of irregular, unnecessary,

excessive, extravagant, or unconscionable

expenditures or uses of government funds and properties.

Note: Under the Constitution, with its expanded powers, the COA may validly veto appropriations which violate rules on unnecessary, irregular, extravagant or unconscionable expenses (Nachura, p. 343). Thus, COA may stop the payment of the price stipulated in government contracts when found to be irregular, extravagant or unconscionable (Sambeli vs. Province of Isabela, 210 SCRA 80).

Prohibiting the use of government vehicles by officials who are provided with transportation allowance was held to be a valid exercise of its powers under the Constitution (Bustamante vs. COA, 216 SCRA 134). Private External Audit Allowed When:

i. government enter into a joint-venture; ii. GOCC is publicly listed; iii. Government borrows money.

But, the COA’s findings/conclusions are binding, in so far as the government agencies are concerned.

Section 3. No law shall be passed exempting

any entity of the Government or its

subsidiaries in any guise whatever, or any

investment of public funds, from the jurisdiction of the Commission on Audit.

Jurisdiction over GOCCs: The Constitution vets in the COA audit jurisdiction over government owned and controlled corporations {GOCCs] with original charters as well as GOCCs without original charters. GOCCs with original charters are subject to COA pre-audit while GOCCs without original charters are subject to COA post-audit. GOCCs without original charters refer to corporations created under the Corporation Code but are owned or controlled by the government. The nature or purpose of the corporation is not material in determining COA’s audit jurisdiction. Neither is the manner of creation of a corporation, whether under a general or special law. The determining factor of COA’s audit jurisdiction is government ownership or control of the corporation (Feleciano vs. COA, GR No. 147402, Jan. 14, 2004). Note: The Court already ruled in several cases that a water district is a GOCC with a special charter since it is created under a special law, PD 198. Thus, water districts are subject to the jurisdiction of the COA GR No. 149154, June 10, 2003).

The PAL, having ceased to be a GOCC, is no longer under the audit jurisdiction of the COA (Philippine Airlines vs. COA, 245 SCRA 39).

Jurisdiction Over LGUs LGUs, though granted local fiscal autonomy, are still within the audit jurisdiction of the COA, (Veloso vs. COA, GR No. 193677, Sept. 6, 2011). Jurisdiction Over Coconut Levy Funds Following the mandate of the COA and the parameters set forth by the foregoing provisions, it is clear that it has jurisdiction over coconut levy funds,


being special public funds. Conversely, the COA has the power, authority and duty to examine, audit and settle all accounts pertaining to the coconut levy funds and consequently, to the UCPB shares purchased using said funds. However, declaring the said funds as partaking the nature of private funds, ergo subject to private appropriation, removes them from the coffer of the public funds of the government, and consequently renders them impervious to the COA audit jurisdiction. Clearly, the pertinent provisions of PD Nos. 961 and 1468 divest the COA of its constitutionally mandated function and undermine its constitutional independence. Accordingly, article III, sec. 5 of both PD Nos. 961 and 1468 must be struch down for being unconstitutional (Philippine Coconut Producers Federation vs. Republic, GR Nos. 177857-58 & 178193, Jan. 24, 2012). Basic rule in public bidding: Bids should be evaluated based on the required documents submitted before and not after the opening of bids. Otherwise, the foundation of a fair and competitive public bidding would be defeated. (Rep. vs. Capulong, 199 SCRAS 134). There is failure in bidding when [Bagatsing vs. Committee on Privatization):

a. there is only one ―offeror‖; or b. when all the offers are non-complying or

unacceptable. Thus, there is no failure of bidding when there were three offerors, although the latter two were disqualified. COA Circular No. 89-296 does not speak of accepted bids, but ―offerors‖, without distinction whether they are qualified or disqualified.

Successful bidder cannot compel a government agency to formalize a contract when its bid exceeds the amount appropriated by Congress for the project: Enshrined in the 1987 Constitution is the mandate that ―no money shall be paid out of the Treasury except in pursuance of an appropriation made by law‖ (Sec. 29[1], Art. VI of the 1987 Constitution). Thus, in the execution of government contracts, the various agencies should limit their expenditures within the appropriations made by law for each fiscal year. The existence of appropriations and the availability of funds are indispensable pre-requites to or conditions sine qua non for the execution and validity of government contracts. Hence, the acceptance of the bid proposal by the agency concerned does not give rise to a perfected contract (Comelec vs. Judge Ma. Luisa Quijano-Padilla, L-151992, Sept. 18, 2002, EN BANC).

Remedy of the party entering into a void government contract: Sec. 48 of Ex. Order No. 292 provides that any contract entered into contrary to the above-mentioned requirements shall be void, and ―the officers entering into the contract shall be liable to the Government or other contracting party for any consequent damage to the same as if the transaction had been wholly between private parties‖. Hence, it is as if the contract is a private one, whereupon, the officer entering into the contract supposedly in behalf of the government binds himself and thus assumes personal liability thereunder. Otherwise stated, the proposed contract being void, cannot be enforced against the Government but the same could be enforced against the public officer (for damages) who entered into such contract (Comelec vs Judge Ma. Luisa Quijano-Padilla, supra).

Section 4. The Commission shall submit to

the President and the Congress, within the

time fixed by law, an annual report covering

the financial condition and operation of the

Government, its subdivisions, agencies, and

instrumentalities, including government-

owned or controlled corporations, and non-

governmental entities subject to its audit, and

recommend measures necessary to improve

their effectiveness and efficiency. It shall

submit such other reports as may be required

by law.

ARTICLE X

LOCAL GOVERNMENT

GENERAL PROVISIONS

Section 1. The territorial and political

subdivisions of the Republic of the Philippines

are the provinces, cities, municipalities, and

barangays. There shall be autonomous

regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

Section 2. The territorial and political subdivisions shall enjoy local autonomy.

Section 3. The Congress shall enact a local

government code which shall provide for a

more responsive and accountable local

government structure instituted through a


system of decentralization with effective

mechanisms of recall, initiative, and

referendum, allocate among the different

local government units their powers,

responsibilities, and resources, and provide

for the qualifications, election, appointment

and removal, term, salaries, powers and

functions and duties of local officials, and all

other matters relating to the organization and

operation of the local units.

Section 4. The President of the Philippines

shall exercise general supervision over local

governments. Provinces with respect to

component cities and municipalities, and

cities and municipalities with respect to

component barangays, shall ensure that the

acts of their component units are within the

scope of their prescribed powers and functions.

Section 5. Each local government unit shall

have the power to create its own sources of

revenues and to levy taxes, fees and charges

subject to such guidelines and limitations as

the Congress may provide, consistent with

the basic policy of local autonomy. Such

taxes, fees, and charges shall accrue

exclusively to the local governments.

Section 6. Local government units shall have

a just share, as determined by law, in the

national taxes which shall be automatically released to them.

Section 7. Local governments shall be

entitled to an equitable share in the proceeds

of the utilization and development of the

national wealth within their respective areas,

in the manner provided by law, including

sharing the same with the inhabitants by way of direct benefits.

Section 8. The term of office of elective local

officials, except barangay officials, which shall

be determined by law, shall be three years

and no such official shall serve for more than

three consecutive terms. Voluntary

renunciation of the office for any length of

time shall not be considered as an

interruption in the continuity of his service for the full term for which he was elected.

Note: Holdover Option is Unconstitutional (Datu Michael Abas Kida vs. Senate, citing Osmeña vs. Comelec, GR No. 196271, Oct. 18, 2011) We rule out the first option – holdover for those who were elected in executive and legislative positions in the ARMM during the 2008-2011 term – as an option that Congress could have chosen because a holdover violates Section 8, Article X of the Constitution. Since elective ARMM officials are local officials, they are covered and bound by the three-year term limit prescribed by the Constitution; they cannot extend their term through a holdover. As this Court put in Osmeña v. COMELEC:

It is not competent for the legislature to extend the term of officers by providing that they shall hold over until their successors are elected and qualified where the constitution has in effect or by clear implication prescribed the term and when the Constitution fixes the day on which the official term shall begin, there is no legislative authority to continue the office beyond that period, even though the successors fail to qualify within the time.

However: Jurisprudence, of course, is not without examples of cases where the question of holdover was brought before, and given the imprimatur of approval by, this Court. The present case though differs significantly from past cases with contrary rulings, particularly from Sambarani v. COMELEC, Adap v. Comelec, and Montesclaros v. Comelec, where the Court ruled that the elective officials could hold on to their positions in a hold over capacity. All these past cases refer to elective barangay or sangguniang kabataan officials whose terms of office are not explicitly provided for in the Constitution; the present case, on the other hand, refers to local elective officials – the ARMM Governor, the ARMM Vice-Governor, and the members of the Regional Legislative Assembly – whose terms fall within the three-year term limit set by Section 8, Article X of the Constitution. Because of their constitutionally limited term, Congress cannot legislate an extension beyond the term for which they were originally elected (Ibid).

Section 9. Legislative bodies of local

governments shall have sectoral representation as may be prescribed by law.

Section 10. No province, city, municipality,

or barangay may be created, divided,

merged, abolished, or its boundary

substantially altered, except in accordance


with the criteria established in the local

government code and subject to approval by

a majority of the votes cast in a plebiscite in the political units directly affected.

Section 11. The Congress may, by law,

create special metropolitan political

subdivisions, subject to a plebiscite as set

forth in Section 10 hereof. The component

cities and municipalities shall retain their

basic autonomy and shall be entitled to their

own local executive and legislative

assemblies. The jurisdiction of the

metropolitan authority that will thereby be

created shall be limited to basic services

requiring coordination.

Note: With the passage of RA 7924, Metro Manila was declared as a ―special development and administrative region‖ and the administration of metro-wide basic services affecting the region was placed under a development authority referred to as the Metropolitan Manila Development Authority [MMDA], whose functions are without prejudice to the autonomy of the affected LGUs. The law does not grant police powers to MMDA. Even the Metro Manila Council, the governing board of the MMDA, has not been delegated any legislative power. Clearly, the MMDA is not a political unit. There is no grant of authority to enact ordinances and resolutions for the general welfare of the inhabitants of the metropolis. MMDA cannot open for public use private road in a private subdivision (MMDA vs. Bel-Air Village Ass., GR No. 135962, March 27, 2000).

Section 12. Cities that are highly urbanized,

as determined by law, and component cities

whose charters prohibit their voters from

voting for provincial elective officials, shall be

independent of the province. The voters of

component cities within a province, whose

charters contain no such prohibition, shall not

be deprived of their right to vote for elective

provincial officials.

Section 13. Local government units may

group themselves, consolidate or coordinate

their efforts, services, and resources for

purposes commonly beneficial to them in


Section 14. The President shall provide for

regional development councils or other similar

bodies composed of local government

officials, regional heads of departments and

other government offices, and representatives

from non-governmental organizations within

the regions for purposes of administrative

decentralization to strengthen the autonomy

of the units therein and to accelerate the

economic and social growth and development

of the units in the region.

AUTONOMOUS REGIONS

Section 15. There shall be created

autonomous regions in Muslim Mindanao and

in the Cordilleras consisting of provinces,

cities, municipalities, and geographical areas

sharing common and distinctive historical and

cultural heritage, economic and social

structures, and other relevant characteristics

within the framework of this Constitution and

the national sovereignty as well as territorial integrity of the Republic of the Philippines.

Section 16. The President shall exercise

general supervision over autonomous regions to ensure that laws are faithfully executed.

Section 17. All powers, functions, and

responsibilities not granted by this

Constitution or by law to the autonomous

regions shall be vested in the National Government.

Section 18. The Congress shall enact an

organic act for each autonomous region with

the assistance and participation of the

regional consultative commission composed

of representatives appointed by the President

from a list of nominees from multi-sectoral

bodies. The organic act shall define the basic

structure of government for the region

consisting of the executive department and

legislative assembly, both of which shall be

elective and representative of the constituent

political units. The organic acts shall likewise

provide for special courts with personal,

family, and property law jurisdiction

consistent with the provisions of this

Constitution and national laws.

The creation of the autonomous region shall

be effective when approved by 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.


RA 6734, the organic act establishing the Autonomous Regional Government of Muslim Mindanao was held valid by the SC (Datu Firdausi Abbas vs. COMELEC, GR No. 89651, Nov. 10, 1989).

The sole province of Ifugao which, in the plebiscite, alone voted in favor of RA 6766, cannot validly constitute the Autonomous Region of the Cordilleras (Ordillo vs. COMELEC, GR no. 93054, Dec. 4, 19900).

Note: The date of the ARMM elections does not fall under any of the matters that the Constitution specifically mandated Congress to provide for in the Organic Act. Therefore, any change in the date of elections cannot be construed as a substantial amendment of the Organic Act that would require compliance with the plebiscite requirement (Datu Michael Abas Kida vs. Senate of the Phil., GR no. 196271, Oct. 18, 2011).

Section 19. The first Congress elected under

this Constitution shall, within eighteen

months from the time of organization of both

Houses, pass the organic acts for the

autonomous regions in Muslim Mindanao and the Cordilleras.

Section 20. Within its territorial jurisdiction

and subject to the provisions of this

Constitution and national laws, the organic

act of autonomous regions shall provide for

legislative powers over:

1. Administrative organization;

2. Creation of sources of revenues;

3. Ancestral domain and natural

resources;

4. Personal, family, and property

relations;

5. Regional urban and rural planning

development;

6. Economic, social, and tourism

development;

7. Educational policies;

8. Preservation and development of the

cultural heritage; and

9. Such other matters as may be

authorized by law for the promotion of

the general welfare of the people of the region.

Section 21. The preservation of peace and

order within the regions shall be the

responsibility of the local police agencies

which shall be organized, maintained,

supervised, and utilized in accordance with

applicable laws. The defense and security of

the regions shall be the responsibility of the National Government.

ARTICLE XI

ACCOUNTABILITY OF PUBLIC OFFICERS

Section 1. Public office is a public trust.

Public officers and employees must, at all

times, be accountable to the people, serve

them with utmost responsibility, integrity,

loyalty, and efficiency; act with patriotism

and justice, and lead modest lives.

IMPEACHMENT A national inquest into the conduct of public men. A method by which persons holding government positions of high authority, prestige and dignity and with definite tenure may be removed from office for causes closely related to their conduct as public officials.

Section 2. The President, the Vice-President,

the Members of the Supreme Court, the

Members of the Constitutional Commissions,

and the Ombudsman may be removed from

office on impeachment for, and conviction of,

culpable violation of the Constitution, treason,

bribery, graft and corruption, other high

crimes, or betrayal of public trust. All other

public officers and employees may be

removed from office as provided by law, but not by impeachment.

IMPEACHABLE OFFICERS [exclusive] i. President; ii. Vice-President; iii. Chief Justice and Associate Justices of the

Supreme Court; iv. Chairmen and members of Constitutional

Commissions; v. The Ombudsman.

GROUNDS [exclusive]

i. Culpable violation of the Constitution; ii. Treason; iii. Bribery; iv. Graft and corruption; v. Betrayal of public trust; and vi. Other high crimes.


Note: An impeachable officer who is a member of the Bar cannot be disbarred without first being impeached (Jarque vs. Desierto, 250 SCRA 11).

Section 3. (1) The House of Representatives

shall have the exclusive power to initiate all

cases of impeachment.

(2) A verified complaint for impeachment

may be filed by any Member of the House of

Representatives or by any citizen upon a

resolution or endorsement by any Member

thereof, which shall be included in the Order

of Business within ten session days, and

referred to the proper Committee within three

session days thereafter. The Committee, after

hearing, and by a majority vote of all its

Members, shall submit its report to the House

within sixty session days from such referral,

together with the corresponding resolution.

The resolution shall be calendared for

consideration by the House within ten session

days from receipt thereof.

(3) A vote of at least one-third of all the

Members of the House shall be necessary

either to affirm a favorable resolution with the

Articles of Impeachment of the Committee, or

override its contrary resolution. The vote of each Member shall be recorded.

(4) In case the verified complaint or

resolution of impeachment is filed by at least

one-third of all the Members of the House,

the same shall constitute the Articles of

Impeachment, and trial by the Senate shall forthwith proceed.

(5) No impeachment proceedings shall be

initiated against the same official more than

once within a period of one year.

(6) The Senate shall have the sole power

to try and decide all cases of impeachment.

When sitting for that purpose, the Senators

shall be on oath or affirmation. When the

President of the Philippines is on trial, the

Chief Justice of the Supreme Court shall

preside, but shall not vote. No person shall be

convicted without the concurrence of two-thirds of all the Members of the Senate.

(7) Judgment in cases of impeachment

shall not extend further than removal from

office and disqualification to hold any office

under the Republic of the Philippines, but the

party convicted shall nevertheless be liable

and subject to prosecution, trial, and punishment, according to law.

(8) The Congress shall promulgate its

rules on impeachment to effectively carry out

the purpose of this section.

RULES OF PROCEDURE IN IMPEACHMENT PROCEEDINGS

RULE I APPLICABILITY OF RULES

Section 1. Applicability of Rules. - These Rules shall apply to all proceedings for impeachment in the House of Representatives against the President, Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions and the Ombudsman for culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes or betrayal of public trust.

RULE II INITIATING IMPEACHMENT

Section 2. Mode of Initiating Impeachment. - Impeachment shall be initiated by the filing and subsequent referral to the Committee on Justice of: *

(a) a verified complaint for impeachment filed by any Member of the House of Representatives; or

(b) a verified complaint filed by any citizen upon a resolution of endorsement by any Member thereof; or

(c) a verified complaint or resolution of impeachment filed by at least one-third (1/3) of all Members of the House.

Section 3. Filing and Referral of Verified Complaints. - A verified complaint for impeachment by a Member of the House or by any citizen upon a resolution of endorsement by any Member thereof


shall be filed with the office of the Secretary General and immediately referred to the Speaker.

The Speaker shall have it included in the Order of Business within ten (10) session days from receipt. It shall then be referred to the Committee on Justice within three (3) session days thereafter.

RULE III FINDING A PROBABLE CAUSE

A. COMMITTEE PROCEEDINGS

Section 4. Determination of Sufficiency in Form and Substance. - Upon due referral, the Committee on Justice shall determine whether the complaint is sufficient in from and substance. If the committee finds that the complaint is insufficient in form, it shall return the same to the Secretary General within three (3) session days with a written explanation of the insufficiency. The Secretary General shall return the same to the complaint(s) together with the committee's written explanation within three (3) session days from receipt of the committee resolution finding the complaint insufficient in form.

Should the committee find the complaint sufficient in form, it shall then determine if the complaint is sufficient in substance. The requirement of substance is met if there is a recital of facts constituting the offense charged and determinative of the jurisdiction of the committee. If the committee finds that the complaint is not sufficient in substance, it shall dismiss the complaint and shall submit its report as provided hereunder.

Section 5. Notice to Respondents and Time to Plead. - If the committee finds the complaint sufficient in form and substance, it shall immediately furnish the respondent(s) with a copy of the resolution and/or verified complaint, as the case may be, with written notice thereof and serve a copy of the answer to the complaint(s). No motion to dismiss shall be allowed within the period to answer the complaint.

The answer, which shall be under oath, may include affirmative defenses. If the respondent fails or refuses to file an answer within the reglementary period, he/she is deemed to have interposed a

general denial to the complaint. Within three (3) days from receipt of the answer, the complainant may file a reply, serving a copy thereof to the respondent who may file a rejoinder within three (3) days from receipt of the reply, serving a copy thereof to the complainant. If the complainant fails to file a reply, all the material allegations in the answer are deemed controverted. Together with their pleadings, the parties shall file their affidavits or counter-affidavits, as the case may be, with their documentary evidence. Such affidavits or counter-affidavits shall be subscribed before the Chairperson of the Committee on Justice or the Secretary General. Notwithstanding all the foregoing, failure presenting evidence in support of his/her defenses.

When there are more than one respondent, each shall be furnished with copy of the verified complaint from a Member of the House or a copy of the verified complaint from a private citizen together with the resolution of endorsement by a Member of the House of Representatives and a written notice to answer and in that case, reference to respondent in these Rules shall be understood as respondents.

Section 6. Submission of Evidences and Memoranda. - After receipt of the pleadings and affidavits and counter-affidavits and relevant documents provided for in Section 5, or the expiration of the time within which they may be filed, the Committee shall determine whether the complaint alleges sufficient grounds for impeachment.

If it finds that sufficient grounds for impeachment do not exist, the Committee shall dismiss the complaint and submit the report required hereunder. If the Committee finds that sufficient grounds for impeachment exist, the Committee shall conduct a hearing. To that end, the Committee, through the Chairperson, may limit the period of examination and cross-examination. The Committee shall have the power to issue compulsory processes for the attendance of witnesses as well as the production of documents and other related evidence.


The hearing before the Committee shall be open to the public except when the security of the State or public interest requires that the hearing be held in executive session.

After the submission of evidence, the Committee may require the submission of memoranda, after which the matter shall be submitted for resolution.

Section 7. Protection to Complainants or Witnesses. - The House may, upon proper petition, provide adequate protection to a complainant or witness if it is shown that his/her personal safety is in jeopardy because of his/her participation in an impeachment proceeding.

Section 8. Report and Recommendation. - The Committee on Justice after hearing, and by a majority vote of all its Members, shall submit its report to the House containing its findings and recommendations within sixty (60) session days from the referral to it of the verified complaint and/or resolution. Together with the report shall be a formal resolution of the Committee regarding the disposition of the complaint which shall be calendar for consideration by the House within ten (10) session days from receipt thereof.

If the Committee finds by a vote of the majority of all its Members that a probable cause exists, it shall submit with its report a resolution setting forth the Articles of Impeachment on the basis of the evidence adduced before the Committee. Otherwise, the complaint shall be dismissed subject to Section 11 of these Rules.

Section 9. Report to be Calendared. - The Committee on Rules shall calendar the report and the accompanying resolution of the Committee on Justice regarding the disposition of the complaint in accordance with the Rules of the House of Representatives. The House shall dispose of the report within sixty (60) session days from its submission by the Committee on Justice.

B. HOUSE ACTION

Section 10. Vote Required for Approval. - A vote of at least one-third (1/3) of all Members of the House is necessary for the approval of the resolution

setting forth the Articles of Impeachment. If the resolution is approved by the required vote, it shall then be endorsed to the Senate for its trial.

On the other hand, should the resolution fail to secure the approval by the required vote, the same result in the dismissal of the complaint for impeachment.

Section 11. Where Dismissal Recommended. - When the report of the Committee on Justice dismisses the complaint, it shall submit to the House a resolution for the dismissal of the verified complaint and/or resolution of impeachment. A vote of at least one-third (1/3) of all the Members of the House shall be necessary to override such resolution, in which case the Committee on Justice shall forthwith prepare the Articles of Impeachment.

Section 12. Vote by Roll Call. - The voting on a favorable resolution with the Articles of Impeachment of the Committee on Justice or a contrary resolution shall be by roll call, and the Secretary General shall records the vote of each Member.

RULE IV VERIFIED COMPLAINT/RESOLUTION BY ONE-THIRD

OF MEMBERS

Section 13. Endorsement of the Complaint/Resolution to the Senate. - A verified complaint/resolution of impeachment filed by at least one-third (1/3) of all the Members of the House shall constitute the Articles of Impeachment, and in this case the verified complaint/resolution shall be endorsed to the Senate in the same manner as an approved bill of the House.

The complaint/resolution must, at the time of filing, be verified and sworn to before the Secretary General by each of the Members constituting at least one-third (1/3) of all Members of the House.

The contents of the verification shall be as follows:

"We, after being sworn in accordance with law, depose and state: That we are the complainants in the above-entitled complaint/resolution of


impeachment; that we have caused the said complaint/resolution to be prepared and have read the contents thereof; and that the allegations therein are true of our own knowledge and belief on the basis of our reading and appreciation of documents and other records pertinent thereto.

___________________ (Signature)

RULE V BAR AGAINST IMPEACHMENT

Section 14. Scope of Bar. - No impeachment proceedings shall be initiated against the same official more than once within a period of one (1) year.

RULE VI PROSECUTOR IN ALL IMPEACHMENT

PROCEEDINGS

Section 15. Impeachment Prosecutor. - The House of Representatives shall act as the sole prosecutor at the trial in the Senate through a committee of eleven (11) Members thereof to be elected by a majority vote.

RULE VII APPLICABILITY OF THE RULES OF CRIMINAL

PROCEDURE

Section 16. Rules of Procedure. - The Rules of Criminal Procedure under the Rules of Court shall, as far as practicable, apply to impeachment proceedings before the House.

Adopted, 3 August 2010

End Note* The Supreme Court decision in Francisco

et al. vs. House of Representatives (GR No. 160261, 10 November 2003), states that Impeachment proceedings are initiated upon filing of the complaint and/or resolution and its referral to the Committee on Justice.

Section 4. The present anti-graft court

known as the Sandiganbayan shall continue

to function and exercise its jurisdiction as now

or hereafter may be provided by law.

The SANDIGANBAYAN – composition: [PD 1606] It is composed of a Presiding Justice and 14 Associate Justices, with the rank of Justices of the CA. it sits in 5 divisions of 3 members each (see. RA 8249) A. Jurisdiction [Original]: Requisites that must concur: 1) The offense committee is a violation of RA 3019;

RA 1379, Chapter II; sec. 2, Title VII of Book Two, RPC; EO Nos. 1, 2, 14, and 14-A;

2) The offender committing the offenses is a public official or employee holding any of the positions enumerated in par. a, sec. 4, RA 8249; and a. Officials of the Executive branch with the

position of Regional Director or higher, or with Salary Grade 27, [G27] according to RA 6758;

b. Members of Congress and officials thereof with G27 and up;

c. Members of the judiciary, without prejudice to the Constitution;

d. Chairmen and members of the Constitutional Commissions, without prejudice to the Constitution;

e. All other national and local officials with G27 or higher.

Because the Philippine National

Construction Corporation has no original charter, petitioner an officer of the PNCC, is not a public officer. Thus, the Sandiganbayan has no jurisdiction over him (Macalino vs. Sandiganbayan, GR No. 140199-200, Feb. 6, 2002).

The only instance when the Sandiganbayan may exercise jurisdiction over private individuals is when the complaint charges him either as a co-principal, accomplice or accessory of a public officer who has been charged with a crime within the jurisdiction of the Sandiganbayan

3) The offense committed is in relation to the office

(Lacson vs. Executive Sec., GR No. 128096, Jan. 20, 1999). It is required that the charge be set forth with particularity as will reasonably indicate that the exact offense in which the accused is alleged to have committed is one in relation to his office. The mere allegation that the ―offense was committed in relation to office‖ is a mere conclusion of law, not a factual averment that would show the close intimacy between the offense charged and the discharge of the accused’s official duties (Ibid).


B. Exclusive Original Jurisdiction – over petitions for the issuance of the writs of mandamus, prohibitions, certiorari, habeas corpus, injunction and other ancillary writs and processes in aid of its appellate jurisdiction; Provided, that the jurisdiction over theses petition shall not be exclusive of the SC. C. Exclusive Appellate Jurisdiction – over final judgments, resolutions, or orders of RTCs, whether in the exercise of their own original or appellate jurisdiction (RA 8249).

DECISIONS: The unanimous vote of all the 3 members shall be required for the pronouncement of judgment by a division. REVIEW OF DECISIONS: By the SC on petition for certiorari raising only questions of law (Republic vs. Sandiganbayan, GR No. 135789, Jan. 31, 2002). MANDATORY SUSPENSION: Sec. 13, RA 3019, makes it mandatory for the Sandiganbayan to suspend any public officer against whom a valid information charging violation of that law, or any offense involving fraud upon government funds or property, is filed (Bolastig vs. Sandiganbayan, 235 SCRA 103)..

Section 5. There is hereby created the

independent Office of the Ombudsman,

composed of the Ombudsman to be known as

Tanodbayan, one overall Deputy and at least

one Deputy each for Luzon, Visayas, and

Mindanao. A separate Deputy for the military establishment may likewise be appointed.

Section 6. The officials and employees of the

Office of the Ombudsman, other than the

Deputies, shall be appointed by the

Ombudsman, according to the Civil Service Law.

Section 7. The existing Tanodbayan shall

hereafter be known as the Office of the

Special Prosecutor. It shall continue to

function and exercise its powers as now or

hereafter may be provided by law, except

those conferred on the Office of the

Ombudsman created under this Constitution.

Section 8. The Ombudsman and his Deputies

shall be natural-born citizens of the

Philippines, and at the time of their

appointment, at least forty years old, of

recognized probity and independence, and

members of the Philippine Bar, and must not

have been candidates for any elective office in

the immediately preceding election. The

Ombudsman must have, for ten years or

more, been a judge or engaged in the

practice of law in the Philippines.

During their tenure, they shall be subject to

the same disqualifications and prohibitions as

provided for in Section 2 of Article 1X-A of this Constitution.

Qualifications of The Ombudsman and his Deputies:

1) Natural-born citizens; 2) At least 40 years of age; 3) Members of the Bar who have been a judge

or engaged in the practice of law for at least 10 years;

4) Of recognized probity and independence; 5) Not have been candidates in the

immediately preceding election.

Section 9. The Ombudsman and his Deputies

shall be appointed by the President from a list

of at least six nominees prepared by the

Judicial and Bar Council, and from a list of

three nominees for every vacancy thereafter.

Such appointments shall require no

confirmation. All vacancies shall be filled within three months after they occur.

COMMENT: A similar provision is found in sec. 4 [1], Art. VIII, and it is held by the SC that the prohibition on midnight appointments does not apply to the Supreme Court. It is believed that such ruling may also apply in this section because of the rules in statutory construction that a special provision prevails over a general one, and that the latter provision will necessarily prevail over earlier once because it is the latter provision that expresses the latest will of the authors.

Section 10. The Ombudsman and his

Deputies shall have the rank of Chairman and

Members, respectively, of the Constitutional

Commissions, and they shall receive the same

salary which shall not be decreased during

their term of office.


Deputies shall serve for a term of seven years

without reappointment. They shall not be

qualified to run for any office in the election

immediately succeeding their cessation from office.


Deputies, as protectors of the people, shall


act promptly on complaints filed in any form

or manner against public officials or

employees of the Government, or any

subdivision, agency or instrumentality


controlled corporations, and shall, in

appropriate cases, notify the complainants of the action taken and the result thereof.

Note: For a GOCC to be within the jurisdiction of the Ombudsman, the following requisites must be met (Leyson vs. Ombudsman, GR No. 134990, April 2000) –

i. An agency organized as a stock or non-stock corporation;

ii. Vested with functions relating to public needs, whether governmental or proprietary; and

iii. Owned by the government directly or through its instrumentalities, either wholly or, where applicable as in the case of stock corporations, to the extent of at least 51% of its capital stock.

Section 13. The Office of the Ombudsman

shall have the following powers, functions,

and duties:

(1) Investigate on its own, or on

complaint by any person, any act or omission

of any public official, employee, office or

agency, when such act or omission appears to

be illegal, unjust, improper, or inefficient.

(2) Direct, upon complaint or at its own

instance, any public official or employee of

the Government, or any subdivision, agency

or instrumentality thereof, as well as of any

government-owned or controlled corporation

with original charter, to perform and expedite

any act or duty required by law, or to stop,

prevent, and correct any abuse or impropriety in the performance of duties.

(3) Direct the officer concerned to take

appropriate action against a public official or

employee at fault, and recommend his

removal, suspension, demotion, fine, censure,

or prosecution, and ensure compliance therewith.

Under sec. 13 [3], Art. XI, the Ombudsman has no authority to directly dismiss a public officer from government service. The power is only to recommend the removal although there is a

strong indication that the recommendation is not merely advisory but actually mandatory within the bounds of law (Tapiador vs. Office of the Ombudsman).

(4) Direct the officer concerned, in any

appropriate case, and subject to such

limitations as may be provided by law, to

furnish it with copies of documents relating to

contracts or transactions entered into by his

office involving the disbursement or use of

public funds or properties, and report any

irregularity to the Commission on Audit for appropriate action.

(5) Request any government agency for

assistance and information necessary in the

discharge of its responsibilities, and to

examine, if necessary, pertinent records and documents.

(6) Publicize matters covered by its

investigation when circumstances so warrant and with due prudence.

(7) Determine the causes of inefficiency,

red tape, mismanagement, fraud, and

corruption in the Government and make

recommendations for their elimination and

the observance of high standards of ethics and efficiency.

(8) Promulgate its rules of procedure and

exercise such other powers or perform such

functions or duties as may be provided by law.

See also the Ombudsman Law [RA, 6770]. The Tanodbayan could review and reverse the

findings of the City Fiscal, and order him to withdraw certain charges, inasmuch as the President’s power of control [in this instance] is exercised not by the Sec. of Justice but by the Tanodbayan because the offense/s charged were allegedly committed by a public functionary in connection with her office (Inting vs. Tanodbayan, 97 SCRA 494).

The prosecution of election offenses is a function belonging to the COMELEC and may not be discharged by the Tanodbayan (De Jesus vs. P.).

Under sec. 24, RA 6770, the Ombudsman or his deputy is authorized to preventively suspend


any officer or employee under his authority pending an investigation irrespective of whether such officer or employee is employed in the office of the Ombudsman or in any other government agency (Buenaseda vs. Flavier, 226 SCRA 645). Requisites:

i. The charge against the officer or employee should involve dishonesty, oppression or grave misconduct or neglect in the performance of duty;

ii. That the charge/s should warrant removal from the service;

iii. The respondent’s continued stay in office would prejudice the case filed against him.

Duration: [Not to exceed] 6 months. The penalty imposed upon the respondent shall not exceed his unexpired term, or a period of 6 months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent as long as he meets the qualifications required for the office. But the penalty of removal from office as a result of an administrative investigation shall be a bar to the candidacy of the respondent for any elective position. The SC upheld the imposition of the administrative penalty of suspension of not more than 6 months for each offense, provided that the successive service of the sentence should not exceed the unexpired portion of the term of the petitioners. The suspension did not amount to removal from office (Salalima vs. Guingona, GR Nos. 117589-92, May 22, 1996).

The determination whether the evidence of guilt is strong to warrant preventive suspension is left to the determination of the Ombudsman. There is no need for a preliminary hearing unlike what is required in a petition for bail (Lastimosa vs. Vazquez, 2443 SCRA 497).

Accordingly, the Congress can, by statute, prescribe other powers, functions and duties to the Ombudsman. Thus, he is authorized, under RA 6770, to utilize the personnel of his office to assist in the investigation of cases. The Ombudsman may refer cases involving non-military personnel for investigation by the Deputy Ombudsman for Military Affairs (Acop vs. Office of the Ombudsman, 248 SCRA 566).

The Ombudsman can also investigate criminal offenses committed by public officers which

have no relation to their office (Vasquez, Alino, 271 SCRA 67).

The Ombudsman is clothed with authority to conduct PI and prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan but those within the jurisdiction of the regular courts as well (Uy vs. Sandiganbayan, GR No. 105965-70, March 20, 2001).

Under secs. 11 and 15, RA 6770, the

Ombudsman is clothed with the authority to conduct PI and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular courts as well (Uy vs. Sandiganbayan, GR No. 105965-70, March 20, 2001).

The fact that the petitioner holds salary grade 31, and thus, the case against him falls exclusively within the Sandiganbayan, does not mean that only the Ombudsman has the authority to conduct PI on the charge of coup d’ etat. The authority is no exclusive but rather concurrent authority with the Department of Justice Panel of Investigators (Honasan vs. Panel of Investigating Prosecutors, GR No. 159747, April 13, 2004).

GR: the Court will not review the Ombudsman’s paramount discretion in prosecuting of dismissing a complaint filed before his office (Olairez vs. Sandiganbayan, GR No. 148030, March 10, 2003). Exception: when grave abuse of discretion is evident in prosecuting or dismissing the case. The investigation pending before the

Ombudsman is not a valid ground for an in camera inspection of bank deposits under RA 1405 because the pending investigation is not before a court of competent jurisdiction (Marquez vs. Desierto, GR No. 129124, March 15, 2002).

The Ombudsman can no longer institute an

administrative case against an erring public officer if the latter was not a public servant at the time the case was filed because he was forced to resign. However, if the act committed by the public officer is indeed inimical to the interests of the State, other legal mechanisms are available to redress the same. Nonetheless, he can still be prosecuted under an administrative complaint despite his resignation if he did so either to


prevent the continuation of a case already filed or to pre-empt the imminent filing of one (Office of the Ombudsman vs. Andutan, Jr., GR No.164679, July 27, 2011).

The Ombudsman may also cite for contempt,

and this power may be exercised by the Ombudsman while conducting preliminary investigation [PI] because PI is an exercise of quasi-judicial functions (Lastimosa vs. Vasquez, 243 SCRA 497).

Administrative orders, directives, or decisions of Ombudsman. Decision is immediately executory only if penalty is public censure, reprimand, suspension of not more than one month, or a fine not equivalent (less than) one month of salary. If higher penalties are imposed, decision is appealable to the CA under Rule 43 by Petition for Review (Fabian vs. Desierto). Resolutions or final orders of the Ombudsman in criminal cases cannot be appealed. Remedy of the aggrieved party in connection with the said resolutions or final orders is a petition for certiorari direct with the SC. Doctrine of hierarchy of courts does not apply because the CA has no authority to issue the writ (Maturan vs. P.,L-150353. July 27, 2004). The Remedy of aggrieved parties from resolutions of the Office of the Ombudsman finding probable cause, or lack thereof, in criminal cases or non-administrative cases, when tainted with grave abuse of discretion, is to file an original action for certiorari with the SC and not with the CA (Estrada vs. Desierto, GR No. 156160, Dec. 9, 2004). Note: Sec. 27, RA 6770, which authorizes an appeal to the SC from decisions of the Ombudsman in an administrative disciplinary cases, is unconstitutional for increasing the appellate jurisdiction of the SC without its advice and concurrence (Villaver vs. Desierto, GR No. 133715, Feb. 13, 2000).

Section 14. The Office of the Ombudsman

shall enjoy fiscal autonomy. Its approved

annual appropriations shall be automatically and regularly released.

Note: As a guarantee of its independence, the Ombudsman has the power to appoint all officials and employees in his office, except his deputies. This power necessarily includes the power of setting, prescribing, and administering the standards for the officials and personnel of the Office (Office of the Ombudsman vs. CSC, GR No. 162215, July 30, 2007).

Section 15. The right of the State to recover

properties unlawfully acquired by public

officials or employees, from them or from

their nominees or transferees, shall not be barred by prescription, laches, or estoppel.

Note: This provision applies only to civil actions for recovery of ill-gotten wealth and NOT to criminal cases. The prosecution of offenses arising from, relating, incident to, or involving ill-gotten wealth is said provision may be barred by prescription (Presidential Ad-Hoc Fact Finding vs. Desierto, GR No. 130140, Oct. 25, 1999).

Section 16. No loan, guaranty, or other form

of financial accommodation for any business

purpose may be granted, directly or

indirectly, by any government-owned or

controlled bank or financial institution to the

President, the Vice-President, the Members of

the Cabinet, the Congress, the Supreme

Court, and the Constitutional Commissions,

the Ombudsman, or to any firm or entity in

which they have controlling interest, during their tenure.

Section 17. A public officer or employee

shall, upon assumption of office and as often

thereafter as may be required by law, submit

a declaration under oath of his assets,

liabilities, and net worth. In the case of the

President, the Vice-President, the Members of

the Cabinet, the Congress, the Supreme

Court, the Constitutional Commissions and

other constitutional offices, and officers of the

armed forces with general or flag rank, the

declaration shall be disclosed to the public in the manner provided by law.

Section 18. Public officers and employees

owe the State and this Constitution allegiance

at all times and any public officer or employee

who seeks to change his citizenship or acquire

the status of an immigrant of another country

during his tenure shall be dealt with by law.


ARTICLE XII

NATIONAL ECONOMY AND PATRIMONY

Section 1. The goals of the national economy

are a more equitable distribution of

opportunities, income, and wealth; a

sustained increase in the amount of goods

and services produced by the nation for the

benefit of the people; and an expanding

productivity as the key to raising the quality of life for all, especially the underprivileged.

The State shall promote industrialization and

full employment based on sound agricultural

development and agrarian reform, through

industries that make full of efficient use of

human and natural resources, and which are

competitive in both domestic and foreign

markets. However, the State shall protect

Filipino enterprises against unfair foreign competition and trade practices.

In the pursuit of these goals, all sectors of the

economy and all regions of the country shall

be given optimum opportunity to develop.

Private enterprises, including corporations,

cooperatives, and similar collective

organizations, shall be encouraged to broaden the base of their ownership.

Section 2. All lands of the public domain,

waters, minerals, coal, petroleum, and other

mineral oils, all forces of potential energy,

fisheries, forests or timber, wildlife, flora and

fauna, and other natural resources are owned

by the State. With the exception of

agricultural lands, all other natural resources

shall not be alienated. The exploration,

development, and utilization of natural

resources shall be under the full control and

supervision of the State. The State may

directly undertake such activities, or it may

enter into co-production, joint venture, or

production-sharing agreements with Filipino

citizens, or corporations or associations at

least 60 per centum of whose capital is owned

by such citizens. Such agreements may be for

a period not exceeding twenty-five years,

renewable for not more than twenty-five

years, and under such terms and conditions

as may provided by law. In cases of water

rights for irrigation, water supply, fisheries, or

industrial uses other than the development of

waterpower, beneficial use may be the measure and limit of the grant.

The State shall protect the nation’s marine

wealth in its archipelagic waters, territorial

sea, and exclusive economic zone, and

reserve its use and enjoyment exclusively to Filipino citizens.

The Congress may, by law, allow small-scale

utilization of natural resources by Filipino

citizens, as well as cooperative fish farming,

with priority to subsistence fishermen and fish

workers in rivers, lakes, bays, and lagoons.

The President may enter into agreements

with foreign-owned corporations involving

either technical or financial assistance for

large-scale exploration, development, and

utilization of minerals, petroleum, and other

mineral oils according to the general terms

and conditions provided by law, based on real

contributions to the economic growth and

general welfare of the country. In such

agreements, the State shall promote the

development and use of local scientific and

technical resources.

The President shall notify the Congress of

every contract entered into in accordance

with this provision, within thirty days from its execution.

THE REGALIAN DOCTRINE [Jura Regalia] ―The universal feudal theory that all lands were held from the Crown, and while the use of lands was granted out to others who were permitted to hold them under certain conditions, the King theoretically retained the title. By fiction of law, he King was regarded as the original proprietor of all lands, and the true and only source of title, and from him all lands were held..‖ (Cariño vs. Insular Government, 1909). Basis: The State’s [or Crown’s] Power of Dominium – the capacity of the State to own or acquire property such as lands and natural resources (Cruz vs. DENR, separate opinion of Justice Kapunan, 347 SCRA 128, Dec. 6, 2000, En Banc).

However, Regalian Theory does NOT negate native title to lands held in private ownership since time immemorial. The SC institutionalized the recognition of the existence of native title to land, or ownership by Filipinos by virtue of possession under claim of ownership since time


immemorial and independent of any grant from the Spanish Crown, as an exception to the theory of jura regalia (Ibid).

It is recognized in the 1935, 1973 and 1987 Constitutions; but ownership is vested in the State as such rather than in the head thereof (Lee Hong Kok, VS. David, 48 SCRA 372). In the absence of proof that property is privately owned, the presumption is that it belongs to the State. Thus, where there is no showing that the land had been classified as alienable before the title was issued, any possession thereof, no matter how lengthy, cannot ripen into ownership. (Republic vs. Sayo, 191 SCRA 71). Before any land may be classified from the forest group and converted in alienable or disposable land for agriculture, there must be a positive act of the Government (Sunbeam vs. CA, 181 SCRA 443). Stewardship Doctrine – Private property is supposed to be held by the individual only as a trustee for the people in general, who are its real owners. Note: The concept of native title to natural resources, [unlike native title to land] is NOT recognized in the Philippines. Rather it merely upheld the right of the indigenous peoples to claim ownership of minerals under the Philippine Bill of 1902 (Cruz vs. DENR, separate opinion of Justice Kapunan, 347 SCRA 128, Dec. 6, 2000, En Banc). The Concept of native Title to Lands It refers to indigenous cultural communities and/or indigenous peoples pre-conquest rights to lands and domains held under a claim of private ownership as far back as memory reaches. These lands are deemed never to have been public lands and are indisputably presumed to have been held that way since before the Spanish conquest. The rights of ICCs and IPs to their ancestral domains by virtue of native title shall be recognized and respected (sec. 11, IPRA). Ownership of land under native title vs. ownership by acquisitive prescription against the State. Ownership by virtue of native title presupposes that t the land has been held by its possessor and his predecessor-in-interest in the concept of an owner since time immemorial. The land is not acquired from the State, that is, Spain or its successor-in--interest, the United States and the Philippine Government. There has been no transfer of title from the State as the land has been regarded as private in character as far back as memory goes. In contrast, ownership of land by acquisitive

prescription against the State involves a conversion of the character of the property from alienable public land to private land, which presupposes a transfer of title from the State to a private person. (Separate Opn, Kapunan, J., Cruz vs Sec. of DENR, supra).

Section 3. Lands of the public domain are

classified into agricultural, forest or timber,

mineral lands and national parks. Agricultural

lands of the public domain may be further

classified by law according to the uses to

which they may be devoted. Alienable lands

of the public domain shall be limited to

agricultural lands. Private corporations or

associations may not hold such alienable

lands of the public domain except by lease,

for a period not exceeding twenty-five years,

renewable for not more than twenty-five

years, and not to exceed one thousand

hectares in area. Citizens of the Philippines

may lease not more than five hundred

hectares, or acquire not more than twelve

hectares thereof, by purchase, homestead, or

grant.

Taking into account the requirements of

conservation, ecology, and development, and

subject to the requirements of agrarian

reform, the Congress shall determine, by law,

the size of lands of the public domain which

may be acquired, developed, held, or leased and the conditions therefor.

CLASSIFICATIONS a. Agricultural (alienable);

Foreshore lands: is that part of the land which is between the high and low water, and left dry by the flux and reflux of the tides. It is part of alienable land of public domain and may be disposed of only by lease and not otherwise (Republic vs. Imperial, GR No. 130906, Feb. 11, 1999). Submerged Lands: Submerged lands, like the waters [sea or bay] above them, are part of the State’s inalienable natural resources. They are property of public dominion, absolutely inalienable and outside the commerce of man. (Chavez vs. PEA, L-133250, Nov. 11, 2003, En Banc).

b. Forest or timber; c. Mineral lands; d. National parks.


ALIENABLE LANDS OF PUBLIC DOMAIN (agricultural lands only) a. Individuals – only Filipino citizens:

i. By purchase, homestead or grant – not more than 12 hectares

ii. By lease – not more than 500 hectares. b. Private corporations – may only lease not more

than 1000 hectares, for 25 years renewable for another 25 years. However, the SC declared that where the

land was acquired in 1962 when corporations were allowed to acquire lands not exceeding 1,024 hectares, the 1973 Constitution [the source of the current prohibition on acquiring public lands except by lease] cannot impair vested rights, and the same may be registered in 1982 despite the prohibition (Director of Lands vs. IAC and Acme Plywood, 146 SCRA 509).

Amari, being a private corporation cannot acquire alienable lands of the public domain (Chavez vs. PEA, GR No. 133250, Nov. 11, 2003).

Public Corporations Can Hold Public Lands: Under the 1935, 1973, and 1987 Constitutions, public corporations are authorized to hold alienable and even inalienable lands of public domain. Cebu City is an end user government agency, thus, Congress may by law transfer public lands to the City to be used for municipal purposes, which may be public or patrimonial. Lands acquired by the City for public purposes may not be alienated. Sale of Reclaimed Land. With the subsequent enactment of the Government Auditing Code (PD No. 1445) on June 11, 1978, any sale of government land must be made ONLY through public bidding. Thus, an ―irrevocable option‖ to purchase government land would now be void being contrary to the requirement of public bidding expressly required in Sec. 79 of PD No. 1445. This requirement of public bidding is reiterated in Sec. 379 of the Local Government Code of 1991 (RA 7160).

Section 4. The Congress shall, as soon as

possible, determine, by law, the specific limits

of forest lands and national parks, marking

clearly their boundaries on the ground.

Thereafter, such forest lands and national

parks shall be conserved and may not be

increased nor diminished, except by law. The

Congress shall provide for such period as it

may determine, measures to prohibit logging in endangered forests and watershed areas.

Section 5. The State, subject to the

provisions of this Constitution and national

development policies and programs, shall

protect the rights of indigenous cultural

communities to their ancestral lands to

ensure their economic, social, and cultural well-being.

The Congress may provide for the

applicability of customary laws governing

property rights or relations in determining the ownership and extent of ancestral domain.

Section 6. The use of property bears a social

function, and all economic agents shall

contribute to the common good. Individuals

and private groups, including corporations,

cooperatives, and similar collective

organizations, shall have the right to own,

establish, and operate economic enterprises,

subject to the duty of the State to promote

distributive justice and to intervene when the common good so demands.

Section 7. Save in cases of hereditary

succession, no private lands shall be

transferred or conveyed except to individuals,

corporations, or associations qualified to acquire or hold lands of the public domain.

Note: Any sale or transfer in violation of the prohibition is null and void. Even if the petitioner proves that the Deed of Sale in his favor is in existence and duly executed, nonetheless, being an alien, he is disqualified from acquiring and owning real (only land) property (Ong Ching Po vs. CA, 239 SCRA 341). Neither can the petitioner recover the money he had spent for the purchase thereof. Equity, as a rule, will follow the law, and will not permit to be done indirectly that which, because of public policy, cannot be done directly (Frenzel vs. Catito, GR No. 143958, July 11, 2003).

COMMENT [only]: It is believed, however, that a distinction should be made when good faith intervened in the execution of the prohibited acquisition. When an alien is in good faith, that is he honestly believed in good faith than he can acquire private lands by purchase, especially so when the transaction is attended by some unscrupulous lawyers who is suppose to warn


him of the prohibition, he must be allowed to recover the amount spent. This is consonant with the civil law concept of unjust enrichment. To allow otherwise, may work injustice to an alien who might as well been victim of fraudulent acts of some citizens. To prohibit him from recovering from the persons who defrauded him is revolting to the common justice. However, when the foreigner has been duly warned, he buys at his own peril.

An action to recover the property sold filed by the former owner will lie; the pari delictu rule will not apply (Philippine Banking Corporation vs. Lui She, 21 SCRA 52). However, land sold to an alien which was later transferred to a citizen, or later becomes a Filipino citizen, can no longer be recovered by the vendor, because there is no longer any public policy involved (Republic vs. IAC, 175 SCRA 398). GR: No private land shall be transferred or conveyed except to individuals, corporations or associations qualified to acquire or hold lands of public domain. Exceptions:

a. Hereditary succession. – Foreigners who inherent through intestate succession. Refers only to intestate succession (Ramirez vs. Vda. De Ramirez, 111 SCRA 704).

b. Former natural-born citizens (sec. 8, Art. XII)– Under BP 185, as amended by RA 8179,

i. 5,000 sqm. for urban land – ii. 3 hectares for rural land.

The land may be used for business and for

any other purposes like residential, etc.

c. Americans [under the Parity Amendment] holding valid title as against private persons. Thus, although an American cannot acquire private lands [as the Amendment refers only to agricultural, mineral and timber lands of the public domain and natural resources] under the Parity Amendment, a previous owner may no longer recover from an American buyer who succeeded in obtaining title over the land. It is only the State through the institution of escheat proceedings or through an action for reversion (Republic vs. Quasha, 46 SCRA 160).

d. Ownership in condominium units to certain allowable participation of aliens.

e. Those with dual citizenship under RA 9225.

Remedies to recover land from disqualified alien: i. Escheat proceedings under the Rule 91,

ROC.

ii. Action for Reversion under the Public Land Act – The Director of Lands has the authority and the specific duty to conduct investigations of alleged fraud in obtaining free patents and corresponding titles to alienable lands and to file corresponding action for reversion before the courts (Republic vs. CA, 172 SCRA 1). The action of the State for the reversion to the public domain of land fraudulently granted to private individuals is imprescriptible (Baguio vs. Republic, GR No. 119682, Jan. 21, 1999). Only the State [through the SolGen] can file suit for reconveyance of such public land to public domain. Thus, a mere applicant for sales patent thereon is not a proper party to file an action for reconveyance (Tankiko vs. Cezar, GR No. 131277, Feb. 2, 1999).

iii. An action for recovery by the former Filipino owner, the pari delictu rule being not applicable, except those falling under the Parity Amendment.

Section 8. Notwithstanding the provisions of

Section 7 of this Article, a natural-born citizen

of the Philippines who has lost his Philippine

citizenship may be a transferee of private lands, subject to limitations provided by law.

Note: The current law implementing Sec. 8, Art. XII of the 1987 Constitution is RA 8179, amending Sec. 10 of the Foreign Investments Act, Sec. 5 of which, reads:

Any [former] natural born citizen who has the legal capacity to enter into a contract under Philippine laws may be a transferee of a private land up to a maximum area of five thousand (5,000) square meters in the case of urban land or three (3) hectares in the case of rural land to be used by him for business or other purposes. In the case of married couples, one of them may avail of the privilege herein granted: Provided, That if both shall avail of the same, the total area acquired shall not exceed the maximum herein fixed.


In case the transferee already owns urban

or rural land for business or other purposes, he shall still be entitled to be a transferee of additional urban or rural land for business or other purposes which when added to those already owned by him shall not exceed the maximum areas herein authorized.

A transferee under this Act may acquire not more than two (2) lots which should be situated in different municipalities or cities anywhere in the Philippines: Provided, That the total land area thereof shall not exceed five thousand (5,000) square meters in the case of rural land for use by him for business or other purposes. A transferee who has already acquired urban land shall be disqualified from acquiring rural land area and vice versa.

Section 9. The Congress may establish an

independent economic and planning agency

headed by the President, which shall, after

consultations with the appropriate public

agencies, various private sectors, and local

government units, recommend to Congress,

and implement continuing integrated and

coordinated programs and policies for national development.

Until the Congress provides otherwise, the

National Economic and Development

Authority shall function as the independent planning agency of the government.

Section 10. The Congress shall, upon

recommendation of the economic and

planning agency, when the national interest

dictates, reserve to citizens of the Philippines

or to corporations or associations at least

sixty per centum of whose capital is owned by

such citizens, or such higher percentage as

Congress may prescribe, certain areas of

investments. The Congress shall enact

measures that will encourage the formation

and operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and

concessions covering the national economy

and patrimony, the State shall give

preference to qualified Filipinos.

Manila Prince Hotel has become part of our national economy and patrimony, and the 51% equity comes within the purview of the constitutional shelter, for it comprises the majority and controlling stock. Consequently, the Filipino first policy is applicable (Manila Prince Hotel vs. GSIS, 267 SCRA 408).

The SC said that this provision is a positive command which is complete in itself and needs no further guidelines or implementing rules or laws for its operation. It is per se enforceable (Ibid)

The State shall regulate and exercise

authority over foreign investments within its

national jurisdiction and in accordance with its national goals and priorities.

Section 11. No franchise, certificate, or any

other form of authorization for the operation

of a public utility shall be granted except to

citizens of the Philippines or to corporations

or associations organized under the laws of

the Philippines, at least sixty per centum of

whose capital is owned by such citizens; nor

shall such franchise, certificate, or

authorization be exclusive in character or for

a longer period than fifty years. Neither shall

any such franchise or right be granted except

under the condition that it shall be subject to

amendment, alteration, or repeal by the

Congress when the common good so requires.

The State shall encourage equity participation

in public utilities by the general public. The

participation of foreign investors in the

governing body of any public utility enterprise

shall be limited to their proportionate share in

its capital, and all the executive and

managing officers of such corporation or

association must be citizens of the Philippines.

PUBLIC UTILITY Is a business or service engaged in regularly supplying the public with some commodity or service of public consequence, such as electricity, gas, water, transportation, telephone or telegraph services. The facility must be necessary for the maintenance of life and occupation of the residents. It implies public use and service to the public. A Shipyard is a Public Utility: Indeed, PD No. 666 explicitly stated that a ―shipyard‖ was not a ―public utility‖. x x x .


However, Sec. 1 of PD No. 666 was expressly repealed by Sec. 20 of BP Blg. No. 391, the Investment Incentive Policy Act of 1983. Subsequently, Executive Order No. 226, the Omnibus Investments Code of 1987, was issued and Sec. 85 thereof expressly repealed BP 391. The express repeal of BP 391 by EO No. 226 did not revive Sec. 1 of PD No. 666, declassifying the shipbuilding and ship repair industry as a public utility, as said executive order did not provide otherwise. When a law which expressly repeals a prior law is itself repealed, the law first repealed shall not be thereby revived, unless expressly so provided (Adm. Code of 1987, Book I, Cap. 5, Sec. 21). Consequently, when the Asset Privatization Trust (APT) drafted the Asset Specific Bidding Rules (ASBR) sometime in 1993, PD No. 666 no longer existed in our statute books. While it is true that the repeal of a statute does not operate to impair rights that have become vested or accrued while the statute was in force, there are no vested rights of the parties that should be protected in the case at bar. The reason is simple: said decree was already inexistent when the ASBR was issued. Thus, it is subject to the 60% Filipino capitalization requirement. (JG Summit Holdings vs. CA, 124293, Nov. 02, 2000). [Cited in the book of Atty. Ucat]. IMPORTANT: However, in the book of Nachura, a shipyard is NOT a public utility because its nature dictates that it serves but a limited clientele whom it may choose to serve at its discretion (JG Summit Holdings vs. CA, GR No. 124293, Sept. 24, 2003) COMMENT: Be guided by the later ruling. No franchisee can demand or acquire exclusivity

in the operation of a public utility. Thus, a franchisee cannot complain of seizure or taking of property because of the issuance of another franchise to a competitor (Pilipino Telephone Corp. vs. NTC, GR No. 138295, Aug. 28, 2003).

The SC acknowledged that there is a trend towards delegating the legislative power to authorize the operation of certain public utilities to administrative agencies and dispensing with the requirement of a congressional franchise.

The Constitution, in no uncertain terms, requires a franchise for the operation of public utilities. However, it does not require a franchise before one can own the facilities needed to operate a public utility so long as he does not operate them to serve the public. What constitute public utility is not ownership but their use to the public (Tatad vs. Garcia).

Radio and television companies do not own the airwaves and frequencies; they are merely given the temporary privilege of using them. A franchise is a privilege subject to amendment, and the provision of BP 881, granting free airtime to the COMELEC is an amendment of the franchise of radio and television stations (TBAP vs. COMELEC, 289 SCRA 337). Note: June 28 - In 2011, the Supreme Court rules

that the term ―capital‖ in Article XII, sec. 11 of the

Constitution refers only to shares of stock entitled to

vote in the election of directors, and directs the

Securities and Exchange Commission to investigate

the Philippine Long Distance Telephone Co. for

possible violation of the constitutional limit on foreign

ownership in utilities using the above definition of

―capital‖ in G.R. No. 176579 (Gamboa v. Teves).

Section 12. The State shall promote the

preferential use of Filipino labor, domestic

materials and locally produced goods, and

adopt measures that help make them competitive.

Section 13. The State shall pursue a trade

policy that serves the general welfare and

utilizes all forms and arrangements of

exchange on the basis of equality and reciprocity.

Section 14. The sustained development of a

reservoir of national talents consisting of

Filipino scientists, entrepreneurs,

professionals, managers, high-level technical

manpower and skilled workers and craftsmen

in all fields shall be promoted by the State.

The State shall encourage appropriate

technology and regulate its transfer for the

national benefit. The practice of all

professions in the Philippines shall be limited

to Filipino citizens, save in cases prescribed by law.

Section 15. The Congress shall create an

agency to promote the viability and growth of

cooperatives as instruments for social justice and economic development.

See also RA 6939 [An Act Creating the Cooperative Development Authority].

The Cooperative Development Authority is devoid of quasi-judicial authority to adjudicate intra-cooperative disputes and more particularly, disputes related to the election of officers and directors of cooperatives. It may, however,


conduct hearings and inquiries in the exercise of its administrative functions (CDA vs. Dolefil Agrarian Reform Beneficiaries Coop., GR No. 137489, May 29, 2002).

Section 16. The Congress shall not, except

by general law, provide for the formation,

organization, or regulation of private

corporations. Government-owned or

controlled corporations may be created or

established by special charters in the interest

of the common good and subject to the test of economic viability.

Section 17. In times of national emergency,

when the public interest so requires, the

State may, during the emergency and under

reasonable terms prescribed by it,

temporarily take over or direct the operation

of any privately-owned public utility or

business affected with public interest.

Note: Sec. 17 must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when se. 17 states that ―the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest,‖ it refers to Congress, not to the President. Whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof (David vs. Arroyo, GR No. 171396, May 3, 2006).

The temporary takeover by the government extends only to the operation of the business and not to the ownership thereof. As such, the government is not required to compensate the private entity owner of the said business as there is no transfer of ownership, whether permanent or temporary. The private owner affected by the temporary takeover cannot likewise, claim just compensation for the use of the said business and it properties as the temporary takeover is in the exercise of its police power and of power of eminent domain (Agan vs. PIATCO, GR No. 155011, May 5, 2003).

Section 18. The State may, in the interest of

national welfare or defense, establish and

operate vital industries and, upon payment of

just compensation, transfer to public

ownership utilities and other private

enterprises to be operated by the Government.

Section 19. The State shall regulate or

prohibit monopolies when the public interest

so requires. No combinations in restraint of

trade or unfair competition shall be allowed.

Note: the constitution does not absolutely prohibit monopolies. Thus, an award fro stevedoring and arrastre services to only one corporation is valid (PPA vs. Mendoza, 138 SCRA 496). The SC held that sec. 19 is anti-trust in history and spirit; it espouses competition. The desirability of competition is the reason for the prohibition against restraint of trade, the reason for the interdiction of unfair competition, and the reason for the prohibition of unmitigated monopolies. A market controlled by one player [monopoly] or a handful of players [oligopoly] is hardly the market where honest-to-goodness competition will prevail (Tatad vs. Sec. of Department of Energy, GR No. 124360, Nov. 7, 1997). Note: although the Constitution enshrines free enterprise as a policy, it nevertheless reserves to the government the power to intervene whenever necessary for the promotion of the general welfare (Ass. of Phil. Coconut Dessicators vs. PCA, GR No. 110526, Feb. 10, 1998).

Section 20. The Congress shall establish an

independent central monetary authority, the

members of whose governing board must be

natural-born Filipino citizens, of known

probity, integrity, and patriotism, the majority

of whom shall come from the private sector.

They shall also be subject to such other

qualifications and disabilities as may be

prescribed by law. The authority shall provide

policy direction in the areas of money,

banking, and credit. It shall have supervision

over the operations of banks and exercise

such regulatory powers as may be provided

by law over the operations of finance

companies and other institutions performing

similar functions.

Until the Congress otherwise provides, the

Central Bank of the Philippines operating

under existing laws, shall function as the central monetary authority.


See also RA 7653.

Section 21. Foreign loans may only be

incurred in accordance with law and the

regulation of the monetary authority.

Information on foreign loans obtained or

guaranteed by the Government shall be made available to the public.

Section 22. Acts which circumvent or negate

any of the provisions of this Article shall be

considered inimical to the national interest

and subject to criminal and civil sanctions, as may be provided by law.

ARTICLE XIII SOCIAL JUSTICE AND HUMAN RIGHTS

SOCIAL JUSTICE Social justice is neither communism, nor despotism, nor atomism nor anarchy, but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. Social justice means the promotion of the welfare of all people, the adoption by the government of measures calculated to ensure economic stability of all component elements of the society through the maintenance of proper economic and social equilibrium in the interrelations of the members of the community, constitutionally, through the adoption of measures legally justifiable, or extra constitutionally, through the exercise of powers underlying the existence of all governments, on the time honored principle of salus populi est suprema lex (Calalang vs. Williams, GR No. 47800, Dec. 2, 1940)

Section 1. The Congress shall give highest

priority to the enactment of measures that

protect and enhance the right of all the

people to human dignity, reduce social,

economic, and political inequalities, and

remove cultural inequities by equitably

diffusing wealth and political power for the common good.

To this end, the State shall regulate the

acquisition, ownership, use, and disposition of property and its increments.

Section 2. The promotion of social justice

shall include the commitment to create

economic opportunities based on freedom of initiative and self-reliance.

Note: While the pursuit of social justice can have revolutionary effect, it cannot justify breaking the law. While the State is mandated to promote social justice in the field of housing, this cannot be interpreted to mean that ―squatting‖ has been legalized. The States solicitude for the destitute and the have-nots does not mean it should tolerate usurpation of property, public or private (Astudillo vs. Board of Directors, PHHC, 73 SCRA 15). In Cecilleville Realty and Service Corp. vs. CA

(178 SCRA 819 [1997]), the SC clarified that compassion for the poor is an imperative of every humane society but only when the recipient is not a rascal (a rapist) claiming an underserved privilege (P vs Mijano, L-129112, July 23, 1999, EN BANC).

LABOR

Section 3. The State shall afford full

protection to labor, local and overseas,

organized and unorganized, and promote full

employment and equality of employment

opportunities for all.

It shall guarantee the rights of all workers to

self-organization, collective bargaining and

negotiations, and peaceful concerted

activities, including the right to strike in

accordance with law. They shall be entitled to

security of tenure, humane conditions of

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.

The State shall promote the principle of

shared responsibility between workers and

employers and the preferential use of

voluntary modes in settling disputes,

including conciliation, and shall enforce their

mutual compliance therewith to foster

industrial peace.

The State shall regulate the relations between

workers and employers, recognizing the right

of labor to its just share in the fruits of

production and the right of enterprises to

reasonable returns to investments, and to expansion and growth.


Note: For more detailed discussions on the topic, refer to Labor Law Reviewer.

AGRARIAN AND NATURAL RESOURCES

REFORM

Section 4. The State shall, by law, undertake

an agrarian reform program founded on the

right of farmers and regular farmworkers who

are landless, to own directly or collectively

the lands they till or, in the case of other

farmworkers, to receive a just share of the

fruits thereof. To this end, the State shall

encourage and undertake the just distribution

of all agricultural lands, subject to such

priorities and reasonable retention limits as

the Congress may prescribe, taking into

account ecological, developmental, or equity

considerations, and subject to the payment of

just compensation. In determining retention

limits, the State shall respect the right of

small landowners. The State shall further provide incentives for voluntary land-sharing.

Agrarian Reform, Control over Agricultural Lands The SC concluded that the farm worker beneficiaries [FWBs] will never have control over the agricultural lands as long as they remain as stockholders of HLI. Since control over agricultural lands must always be in the hands of the farmers, the Court reconsidered its earlier ruling that the qualified FWBs should be given an option to remain as stockholders of HLI, inasmuch as there qualified FWBs will never gain control given the present proportion of shareholdings in the HLI. In light of the foregoing consideration, the option to remain in HLI granted to the individual FWBs will have to be recalled and revoked. Moreover, bearing in mind that with the revocation of the approval of the Stock Distribution Plan [SDP], HLI will no longer be operating under SDP and will only be treated as an ordinary private corporation; The FWBs who will remain as stockholders of HLI will be treated as ordinary stockholders and will no longer be under the protective mantle of RA 6657 (Hacienda Luisita Inc. vs. Presidential Agrarian Reform Council, GR No. 171101, Nov. 22, 2011). Note: Petition for exemption from the coverage of CARP is not adversarial and non-litigious. Nowhere in the rules is it required that occupants of a landholding should be notified of an initiated or pending emption application (Roxas vs. DAMBA, GR No. 149548, Dec. 14., 2010).

See also the Comprehensive Agrarian Reform Law.

Section 5. The State shall recognize the right

of farmers, farmworkers, and landowners, as

well as cooperatives, and other independent

farmers' organizations to participate in the

planning, organization, and management of

the program, and shall provide support to

agriculture through appropriate technology

and research, and adequate financial,

production, marketing, and other support services.

Section 6. The State shall apply the

principles of agrarian reform or stewardship,

whenever applicable in accordance with law,

in the disposition or utilization of other

natural resources, including lands of the

public domain under lease or concession

suitable to agriculture, subject to prior rights,

homestead rights of small settlers, and the

rights of indigenous communities to their

ancestral lands. The State may resettle

landless farmers and farmworkers in its own

agricultural estates which shall be distributed to them in the manner provided by law.

Section 7. The State shall protect the rights

of subsistence fishermen, especially of local

communities, to the preferential use of the

communal marine and fishing resources, both

inland and offshore. It shall provide support

to such fishermen through appropriate

technology and research, adequate financial,

production, and marketing assistance, and

other services. The State shall also protect,

develop, and conserve such resources. The

protection shall extend to offshore fishing

grounds of subsistence fishermen against

foreign intrusion. Fishworkers shall receive a

just share from their labor in the utilization of marine and fishing resources.

Section 8. The State shall provide incentives

to landowners to invest the proceeds of the

agrarian reform program to promote

industrialization, employment creation, and

privatization of public sector enterprises.

Financial instruments used as payment for

their lands shall be honored as equity in enterprises of their choice.


URBAN LAND REFORM AND HOUSING

Section 9. The State shall, by law, and for

the common good, undertake, in cooperation

with the private sector, a continuing program

of urban land reform and housing which will

make available at affordable cost, decent

housing and basic services to under-privileged

and homeless citizens in urban centers and

resettlement areas. It shall also promote

adequate employment opportunities to such

citizens. In the implementation of such

program the State shall respect the rights of small property owners.

Section 10. Urban or rural poor dwellers

shall not be evicted nor their dwelling

demolished, except in accordance with law and in a just and humane manner.

No resettlement of urban or rural dwellers

shall be undertaken without adequate

consultation with them and the communities

where they are to be relocated.

Note: The constitutional requirement that the eviction of squatter and the demolition of the shanties shall be done in accordance with law does not mean that the validity of legality of the demolition or eviction hinges on the existence of a resettlement are designated or earmarked by the government (P. vs. Leachon, GR No. 108725, Sept. 25, 1998). Under RA 7279, lands for socialized housing are to be acquired in the following order: a) Governmental lands; b) Alienable lands of public domain; c) Unregistered, abandoned or idle lands; d) Lands within the declared Ares for Priority

Development, Zonal Improvement Program sites, Slum Improvement and Resettlement sites which have not yet been acquired;

e) BLISS sites which have not yet been acquired; and

f) Privately owned lands.

The mode of expropriation is subject to 2 conditions:

i. It shall be resorted to only when the other modes of acquisition have been exhausted; and

ii. Parcels owned by small property owners are exempt from such acquisition.

Small Property Owners: i. Owners of residential lands with an area

of 300 sqm. In urbanized cities and not more than 800 sqm in urban areas; and

ii. They do not own residential property other than the same.

Thus, the LGUs are not given unbridled authority in expropriating properties for purposes of decent socialized housing projects. The exercise of power of eminent domain is subject to some restrictions (City of Mandaluyong vs. Francisco, GR NO. 137152, Jan. 29, 2001).

HEALTH

Section 11. The State shall adopt an

integrated and comprehensive approach to

health development which shall endeavor to

make essential goods, health and other social

services available to all the people at

affordable cost. There shall be priority for the

needs of the under-privileged, sick, elderly,

disabled, women, and children. The State

shall endeavor to provide free medical care to paupers.

Section 12. The State shall establish and

maintain an effective food and drug

regulatory system and undertake appropriate

health, manpower development, and

research, responsive to the country's health needs and problems.

Section 13. The State shall establish a

special agency for disabled person for their

rehabilitation, self-development, and self-

reliance, and their integration into the mainstream of society.

WOMEN

Section 14. The State shall protect working

women by providing safe and healthful

working conditions, taking into account their

maternal functions, and such facilities and

opportunities that will enhance their welfare

and enable them to realize their full potential

in the service of the nation.


ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS

Section 15. The State shall respect the role

of independent people's organizations to

enable the people to pursue and protect,

within the democratic framework, their

legitimate and collective interests and

aspirations through peaceful and lawful means.

People's organizations are bona fide

associations of citizens with demonstrated

capacity to promote the public interest and

with identifiable leadership, membership, and structure.

Section 16. The right of the people and their

organizations to effective and reasonable

participation at all levels of social, political,

and economic decision-making shall not be

abridged. The State shall, by law, facilitate

the establishment of adequate consultation

mechanisms.

HUMAN RIGHTS

Section 17. (1) There is hereby created an

independent office called the Commission on Human Rights.

(2) 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.

COMPOSITION: A Chairman and 4 members. Qualifications:

i. Natural-born citizens; ii. Majority must be members of the Bar.

Appointment: by the President without the need of confirmation by the Commission on Appointments (Mary Concepcion vs. Salonga).

(3) Until this Commission is constituted,

the existing Presidential Committee on

Human Rights shall continue to exercise its present functions and powers.

(4) The approved annual appropriations of

the Commission shall be automatically and

regularly released.

Note: The SC said that the CHR, unlike the 3 Constitutional Commissions, does not enjoy fiscal autonomy (CHREA vs. CHR, GR No. 155336, Nov. 25, 2004).

Section 18. The Commission on Human

Rights shall have the following powers and functions:

(1) Investigate, on its own or on

complaint by any party, all forms of human

rights violations involving civil and political rights;

The CHR has no jurisdiction or adjudicatory powers over certain specific types of cases, like alleged human rights violations involving civil and political rights. (Cariño vs. CHR, GR No. 96681, Dec. 2, 1991).

Having merely the power to investigate, the CHR cannot and should not try and resolve on the merits the matters involved in striking teachers case.

(2) Adopt its operational guidelines and

rules of procedure, and cite for contempt for

violations thereof in accordance with the

Rules of Court;

(3) Provide appropriate legal measures for

the protection of human rights of all persons

within the Philippines, as well as Filipinos

residing abroad, and provide for preventive

measures and legal aid services to the under-

privileged whose human rights have been violated or need protection;

The CHR, not being a court of justice, cannot issue writs of injunction or a restraining order against supposed violators of human rights (EPZA, vs. CHR, 208 SCRA 125).

CHR has no jurisdiction to issue the ―order to desist‖ [a semantic interplay of a restraining order], inasmuch as such order is not investigatorial in character but prescinds from an adjudicatory power it does not possess (Simon vs. CHR, 229 SCRA 117).


(4) Exercise visitorial powers over jails,

prisons, or detention facilities;

(5) Establish a continuing program of

research, education, and information to

enhance respect for the primacy of human rights;

(6) Recommend to Congress effective

measures to promote human rights and to

provide for compensation to victims of violations of human rights, or their families;

(7) Monitor the Philippine Government's

compliance with international treaty obligations on human rights;

(8) 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;

(9) Request the assistance of any

department, bureau, office, or agency in the performance of its functions;

(10) Appoint its officers and employees in

accordance with law; and

(11) Perform such other duties and

functions as may be provided by law.

Section 19. The Congress may provide for

other cases of violations of human rights that

should fall within the authority of the

Commission, taking into account its recommendations.

ARTICLE XIV

EDUCATION, SCIENCE AND

TECHNOLOGY, ARTS, CULTURE AND

SPORTS

EDUCATION


promote the right of all citizens to quality

education at all levels, and shall take

appropriate steps to make such education accessible to all.

Section 2. The State shall:

(1) Establish, maintain, and support a

complete, adequate, and integrated system of

education relevant to the needs of the people and society;

(2) Establish and maintain, a system of

free public education in the elementary and

high school levels. Without limiting the

natural rights of parents to rear their children,

elementary education is compulsory for all children of school age;

(3) Establish and maintain a system of

scholarship grants, student loan programs,

subsidies, and other incentives which shall be

available to deserving students in both public

and private schools, especially to the under-privileged;

(4) Encourage non-formal, informal, and

indigenous learning systems, as well as self-

learning, independent, and out-of-school

study programs particularly those that respond to community needs; and

(5) Provide adult citizens, the disabled,

and out-of-school youth with training in civics, vocational efficiency, and other skills.

Section 3. (1) All educational institutions

shall include the study of the Constitution as part of the curricula.

(2) They shall inculcate patriotism and

nationalism, foster love of humanity, respect

for human rights, appreciation of the role of

national heroes in the historical development

of the country, teach the rights and duties of

citizenship, strengthen ethical and spiritual

values, develop moral character and personal

discipline, encourage critical and creative

thinking, broaden scientific and technological knowledge, and promote vocational efficiency.

(3) At the option expressed in writing by

the parents or guardians, religion shall be

allowed to be taught to their children or

wards in public elementary and high schools

within the regular class hours by instructors

designated or approved by the religious


authorities of the religion to which the

children or wards belong, without additional

cost to the Government.

Section 4. (1) The State recognizes the

complementary roles of public and private

institutions in the educational system and

shall exercise reasonable supervision and

regulation of all educational institutions.

Note: The requirement that a school must first obtain government authorization before operating is based on the State policy that educational programs and or operations shall be of good quality and, therefore, shall at least satisfy minimum standards with respect to curricula, teaching staff, physical plant and facilities and administrative and management viability (Philippine Merchant Marine School vs. CA).

(2) Educational institutions, other than

those established by religious groups and

mission boards, shall be owned solely by

citizens of the Philippines or corporations or

associations at least sixty per centum of the

capital of which is owned by such citizens.

The Congress may, however, require

increased Filipino equity participation in all educational institutions.

The control and administration of

educational institutions shall be vested in

citizens of the Philippines.

No educational institution shall be

established exclusively for aliens and no

group of aliens shall comprise more than one-

third of the enrollment in any school. The

provisions of this sub section shall not apply

to schools established for foreign diplomatic

personnel and their dependents and, unless

otherwise provided by law, for other foreign

temporary residents.

(3) All revenues and assets of non-stock,

non-profit educational institutions used

actually, directly, and exclusively for

educational purposes shall be exempt from

taxes and duties. Upon the dissolution or

cessation of the corporate existence of such

institutions, their assets shall be disposed of

in the manner provided by law.

Proprietary educational institutions,

including those cooperatively owned, may

likewise be entitled to such exemptions,

subject to the limitations provided by law,

including restrictions on dividends and provisions for reinvestment.

(4) Subject to conditions prescribed by

law, all grants, endowments, donations, or

contributions used actually, directly, and

exclusively for educational purposes shall be exempt from tax.

Section 5. (1) The State shall take into

account regional and sectoral needs and

conditions and shall encourage local planning

in the development of educational policies and programs.

(2) Academic freedom shall be enjoyed in all institutions of higher learning.

Three Views: [according to Nachura, only 2 views] a. From the standpoint of the educational

institution: The freedom of the university to determine –

i. Who may teach; ii. What may be taught; iii. How shall it be thought; and iv. Who may be admitted to the study.

b. From the standpoint of the members of the

academe: the freedom of the teacher or research worker in higher institutions of learning to investigate and discuss the problems of his science and to express his conclusions, whether through publication or in the instruction of students without interference from political or ecclesiastical authority, or from administrative officials in which he is employed, unless his methods are found by qualified bodies of his own profession to be completely incompetent or contrary to professional ethics.

c. From the standpoint of the Student - the right to enjoy in school the guarantee of the Bill of Rights (Non vs. Dames, GR No. 89317, May 20, 1990).

Limitations:

i. The police power of the State; ii. The social interest of the community.

VALID GROUNDS TO DENY READMISSION OF STUDENTS: a. Academic deficiency; and b. Breach of the school’s reasonable rules of

conduct.


Termination of Contract Rule: When a student enrolls in a given school, he is registering for the entire semester and the semester sends, the school has no duty to accept him because the contract is deemed terminated (Alcuaz vs. PSBA, 161 SCRA 7).

Note: This is NOT anymore controlling now. The rule now is that the student is admitted on course to course basis and may not be denied readmission except only for academic deficiency and breach of reasonable school code of conduct (Non vs. Dames, supra).

Minimum disciplinary standards in imposing disciplinary sanctions on students (Guzman vs. National University, 142 SCRA 699) –

i. The students must be informed in writing of the nature and cause of accusation against them;

ii. They shall have the right to answer the charges against them, with the assistance of counsel, if desired;

iii. They shall be informed of the evidence against them;

iv. They shall have the right to adduce evidence in their own behalf; and

v. The evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.

It is within the sound discretion of the university to determine whether a student may be conferred graduation honors, considering that he had incurred a failing grade in an earlier course she took in school (USC vs. CA, 166 SCRA 570).

The university has the right to revoke or withdraw the honor or distinction conferred when it was shown that such honor or distinction was obtained through fraud (UP Board of Regents vs. Wiliam, GR No. 134625, Aug. 31, 1999).

Resolution No. 105 of the PRC prohibiting examinees for the accountancy licensure examinations from attending ―any review class‖, briefing, conference or the like‖ or to ―receive any hand-out, review material or any tip‖ from any school, etc., was held to have violated academic freedom of the schools concerned (Lupanco vs. CA, 160 SCRA 848). The prerogative of the school to provide standards for its teachers and to determine whether or not these standards have been met is in accordance with academic freedom which give educational institutions the right to choose who should teach. Thus, the 3 year maximum period of probation of teachers must be satisfactory in accordance with the

standards of the employer (Cagayan Capitol College vs. NLRC, 189 SCRA 658). Academic freedom was never meant to be unbridled license; it is a privilege which assumes the correlative duty to exercise it responsibly. Thus, expulsion of a student was disproportionate to his having unit deficiencies in his CMT course, there is reason to believe that the school’s action is motivated by the student’s participation in questioning the tuition fee increase (Isabelo vs. CA, 227 SCRA 591). The SC sustained the primacy of academic freedom over Civil Service rules on AWOL. Even in the light of provisions of the CSL, the respondent Commission had no authority to dictate to UP or any institution of higher learning the outright dismissal of its personnel (UP and Alfredo de Torres vs. CSC, GR No. 132860, April 3, 2001).

(3) Every citizen has a right to select a

profession or course of study, subject to fair,

reasonable, and equitable admission and academic requirements.

The SC upheld the constitutionality of NMAT as requirement fro admission to medical school. It ensures quality education for future doctors and protects public health by making sure of the competence of future medical practitioners (Tablarin vs. Gutierrez, 154 SCRA 730).

The regulation that a person who has thrice failed the National Medical Admission Test [NMAT] is not entitled to take it again was upheld by the SC (DECS vs. San Diego, 180 SCRA 534).

(4) The State shall enhance the right of

teachers to professional advancement. Non-

teaching academic and non-academic

personnel shall enjoy the protection of the State.

(5) The State shall assign the highest

budgetary priority to education and ensure

that teaching will attract and retain its rightful

share of the best available talents through

adequate remuneration and other means of job satisfaction and fulfillment.

Note: This provision has been construed to be merely directory; it does not follow that the hands of Congress be so hamstrung as to deprive it of the power to respond to the imperatives of national interest and the attainment of other State policies


and objectives (Guingona vs. Carague, 196 SCRA 221)

LANGUAGE

Section 6. The national language of the

Philippines is Filipino. As it evolves, it shall be

further developed and enriched on the basis of existing Philippine and other languages.

Subject to provisions of law and as the

Congress may deem appropriate, the

Government shall take steps to initiate and

sustain the use of Filipino as a medium of

official communication and as language of

instruction in the educational system.

Section 7. For purposes of communication

and instruction, the official languages of the

Philippines are Filipino and, until otherwise provided by law, English.

The regional languages are the auxiliary

official languages in the regions and shall

serve as auxiliary media of instruction therein.

Spanish and Arabic shall be promoted on a voluntary and optional basis.

Section 8. This Constitution shall be

promulgated in Filipino and English and shall

be translated into major regional languages, Arabic, and Spanish.

Section 9. The Congress shall establish a

national language commission composed of

representatives of various regions and

disciplines which shall undertake, coordinate,

and promote researches for the development,

propagation, and preservation of Filipino and

other languages.

SCIENCE AND TECHNOLOGY

Section 10. Science and technology are

essential for national development and

progress. The State shall give priority to

research and development, invention,

innovation, and their utilization; and to

science and technology education, training,

and services. It shall support indigenous,

appropriate, and self-reliant scientific and

technological capabilities, and their

application to the country's productive systems and national life.

Section 11. The Congress may provide for

incentives, including tax deductions, to

encourage private participation in programs

of basic and applied scientific research.

Scholarships, grants-in-aid, or other forms of

incentives shall be provided to deserving

science students, researchers, scientists,

inventors, technologists, and specially gifted

citizens.

Section 12. The State shall regulate the

transfer and promote the adaptation of

technology from all sources for the national

benefit. It shall encourage the widest

participation of private groups, local

governments, and community-based

organizations in the generation and utilization of science and technology.


secure the exclusive rights of scientists,

inventors, artists, and other gifted citizens to

their intellectual property and creations,

particularly when beneficial to the people, for such period as may be provided by law.

ARTS AND CULTURE

Section 14. The State shall foster the

preservation, enrichment, and dynamic

evolution of a Filipino national culture based

on the principle of unity in diversity in a

climate of free artistic and intellectual expression.

Section 15. Arts and letters shall enjoy the

patronage of the State. The State shall

conserve, promote, and popularize the

nation's historical and cultural heritage and resources, as well as artistic creations.

Section 16. All the country's artistic and

historic wealth constitutes the cultural

treasure of the nation and shall be under the

protection of the State which may regulate its disposition.

Section 17. The State shall recognize,

respect, and protect the rights of indigenous

cultural communities to preserve and develop

their cultures, traditions, and institutions. It


shall consider these rights in the formulation of national plans and policies.

Section 18. (1) The State shall ensure equal

access to cultural opportunities through the

educational system, public or private cultural

entities, scholarships, grants and other

incentives, and community cultural centers,

and other public venues.

(2) The State shall encourage and

support researches and studies on the arts and culture.

SPORTS

Section 19. (1) The State shall promote

physical education and encourage sports

programs, league competitions, and amateur

sports, including training for international

competitions, to foster self-discipline,

teamwork, and excellence for the development of a healthy and alert citizenry.

(2) All educational institutions shall

undertake regular sports activities throughout

the country in cooperation with athletic clubs

and other sectors.

ARTICLE XV

THE FAMILY

Section 1. The State recognizes the Filipino

family as the foundation of the nation.

Accordingly, it shall strengthen its solidarity

and actively promote its total development.

Section 2. Marriage, as an inviolable social

institution, is the foundation of the family and shall be protected by the State.

Section 3. The State shall defend:

(1) The right of spouses to found a family

in accordance with their religious convictions and the demands of responsible parenthood;

(2) The right of children to assistance,

including proper care and nutrition, and

special protection from all forms of neglect,

abuse, cruelty, exploitation and other

conditions prejudicial to their development;

(3) The right of the family to a family living wage and income; and

(4) The right of families or family

associations to participate in the planning and

implementation of policies and programs that affect them.

Section 4. The family has the duty to care

for its elderly members but the State may

also do so through just programs of social security.

ARTICLE XVI

GENERAL PROVISIONS

Section 1. The flag of the Philippines shall be

red, white, and blue, with a sun and three

stars, as consecrated and honored by the people and recognized by law.

Section 2. The Congress may, by law, adopt

a new name for the country, a national

anthem, or a national seal, which shall all be

truly reflective and symbolic of the ideals,

history, and traditions of the people. Such law

shall take effect only upon its ratification by

the people in a national referendum.

Note: Insert RA 8491

Section 3. The State may not be sued

without its consent.

AKA ―Royal Prerogative of Dishonesty‖ BASIS: There can be no legal right against the authority which makes the law on which the right depends (Republic vs. Villasor, 54 SCRA 83). Immunity is enjoyed by other States, consonant with the PIL principle of par in parem non habet imperium. The Head of State, who is deemed the personification of the State, is inviolable, and thus, enjoys immunity from suit. A foreign agent acting within the scope of his authority is immune from suit. However, he may be held liable for damages in his individual capacity if his acts are attended by bad faith, malice or beyond the scope of his authority (Minucher vs. CA, GR No. 142396, Feb. 11, 2003).


The United Nations, as well as its specialized agencies, is likewise beyond the jurisdiction of local courts. A categorical recognition by the Executive branch is held to be a political question conclusive upon the courts in order not to embarrass a political department of the government (ICMC vs. Sec. of Labor, 190 SCRA 120). TEST TO DETERMINE IF SUIT IS AGAINST THE STATE Will the enforcement of the judgment require an affirmative act from the state, such as appropriation of the needed amount to satisfy the judgment? If so, then it’s a suit against the state (Sanders vs. Veridiano, 162 SCRA 88). SUIT AGAINST GOVERNMENT AGENCIES a) Incorporated – look at the charter, whether the

agency can sue or be sued, if it can, it is an express consent.

I. LGUs II. NIA

III. PNR b) Unincorporated – inquire into the principal

function of the agency. I. If governmental – no suit without

consent i. Bureau of Printing ii. Bureau of Customs

Note: even in the exercise of proprietary functions incidental to its primary governmental functions, an unincorporated agency still cannot be sued without State’s consent.

II. If proprietary – suit will lie. When the State engages in proprietary functions, hen it descends to the level of a private individual, and may, therefore, be vulnerable to suit.

SUIT AGAINST PUBLIC OFFICERS The doctrine of state immunity also applies to complaints filed against official for acts performed by them in the discharge of their duties within the scope of their authority. Exceptions: (Sanders vs. Veridiano, supra)

1) To compel him to do an act required by law. 2) To restrain him from performing an act

alleged to be unconstitutional. 3) To compel payment of damages from an

already appropriated assurance fund. 4) To refund tax over payments from funds

already available.

5) Suit is against the individual capacity of the public officer.

6) Where the government itself violated its own laws because the doctrine of immunity from suit cannot be used to perpetrate injustice.

Section 4. The Armed Forces of the

Philippines shall be composed of a citizen

armed force which shall undergo military

training and serve as may be provided by

law. It shall keep a regular force necessary for the security of the State.

Section 5. (1) All members of the armed

forces shall take an oath or affirmation to uphold and defend this Constitution.

(2) The State shall strengthen the

patriotic spirit and nationalist consciousness

of the military, and respect for people's rights

in the performance of their duty.

(3) Professionalism in the armed forces

and adequate remuneration and benefits of

its members shall be a prime concern of the

State. The armed forces shall be insulated

from partisan politics.

No member of the military shall engage,

directly or indirectly, in any partisan political activity, except to vote.

(4) No member of the armed forces in the

active service shall, at any time, be appointed

or designated in any capacity to a civilian

position in the Government, including


or any of their subsidiaries.

(5) Laws on retirement of military officers

shall not allow extension of their service.

(6) The officers and men of the regular

force of the armed forces shall be recruited

proportionately from all provinces and cities

as far as practicable.

(7) The tour of duty of the Chief of Staff of

the armed forces shall not exceed three

years. However, in times of war or other

national emergency declared by the

Congress, the President may extend such tour of duty.


Section 6. The State shall establish and

maintain one police force, which shall be

national in scope and civilian in character, to

be administered and controlled by a national

police commission. The authority of local

executives over the police units in their jurisdiction shall be provided by law.

Section 7. The State shall provide immediate

and adequate care, benefits, and other forms

of assistance to war veterans and veterans of

military campaigns, their surviving spouses

and orphans. Funds shall be provided therefor

and due consideration shall be given them in

the disposition of agricultural lands of the

public domain and, in appropriate cases, in the utilization of natural resources.

Section 8. The State shall, from time to

time, review to increase the pensions and

other benefits due to retirees of both the

government and the private sectors.

Section 9. The State shall protect consumers

from trade malpractices and from substandard or hazardous products.

Section 10. The State shall provide the

policy environment for the full development of

Filipino capability and the emergence of

communication structures suitable to the

needs and aspirations of the nation and the

balanced flow of information into, out of, and

across the country, in accordance with a

policy that respects the freedom of speech and of the press.

Section 11. (1) The ownership and

management of mass media shall be limited

to citizens of the Philippines, or to

corporations, cooperatives or associations, wholly-owned and managed by such citizens.

The Congress shall regulate or prohibit

monopolies in commercial mass media when

the public interest so requires. No

combinations in restraint of trade or unfair

competition therein shall be allowed.

(2) The advertising industry is impressed

with public interest, and shall be regulated by

law for the protection of consumers and the promotion of the general welfare.

Only Filipino citizens or corporations or

associations at least seventy per centum of

the capital of which is owned by such citizens

shall be allowed to engage in the advertising industry.

The participation of foreign investors in

the governing body of entities in such

industry shall be limited to their proportionate

share in the capital thereof, and all the

executive and managing officers of such

entities must be citizens of the Philippines.

Section 23, Art. XVIII. Advertising entities affected by paragraph (2), Section 11 of Article XV1 of this Constitution shall have five years from its ratification to comply on a graduated and proportionate basis with the minimum Filipino ownership requirement therein.

Section 12. The Congress may create a

consultative body to advise the President on

policies affecting indigenous cultural

communities, the majority of the members of which shall come from such communities.

ARTICLE XVII AMENDMENTS OR REVISIONS

Amendment vs. Revision (Lambino vs. COMELEC, GR No. 174153, Oct. 25, 2006).

Amendment Revision

Broadly refers to a change that adds, reduces, deleted, without altering the basic principle involved

Broadly implies a change that alters a basic principle in the Constitution. There is also revision if the change alters the substantial entirety of the Constitution

Generally affects only the specific provision being amended

Generally affects several provisions of the Constitution

Tests applied to determine whether the proposal was a revision of amendment: a. Quantitative Test – whether the proposed

change is so extensive in its provisions as to change directly the ―substance entirety‖ of the Constitution by the deletion or alteration of numerous provisions. The Court examines only the number of provisions and not the degree of change.


b. Qualitative Test – whether change will accomplish such far-reaching changes in the nature of our basic governmental plan as to amount to a revision.

Note: Revision of the Constitution cannot be effected through initiative and referendum. Reason: Formulation of provisions revising the Constitution requires both cooperation and debate which can only be done through a collegial body (Bernas, 2011).

Section 1. Any amendment to, or revision of,

this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

3 Theories on the Position of a Constitutional Convention vis-à-vis the regular departments of government:

1) Theory of Conventional Sovereignty (Loomis vs. Jackson, W. Va 613);

2) Convention is inferior to the other departments (Wood’s Appeal, 79 Pa. 59);

3) Independent and co-equal to the other departments; one observed in the Philippines (Mabanag vs. Lopez, 78 Phil. 1).

Section 2. Amendments to this Constitution

may likewise be directly proposed by the

people through initiative upon a petition of at

least twelve per centum of the total number

of registered voters, of which every legislative

district must be represented by at least three

per centum of the registered voters therein.

No amendment under this section shall be

authorized within five years following the

ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.

Note: The SC declared RA 7635 inadequate to amend the Constitution, because sec. 3 mentions initiative on the Constitution and sec. 5 restates the constitutional requirements as to the percentage of registered voter needed for a proposal, the law does not provide for the contents of a petition for initiative on the Constitution; while there are subtitles for national and local initiatives, there is no such for initiative on the Constitution; thus the law is incomplete. This inadequacy cannot be cured by empowering the COMELEC to promulgate

implementing rules and regulations (Defensor-Santiago vs. COMELEC, GR No. 127325, March 19, 1997). The Constitution requires that an initiative must be ―directly proposed by the people – in a petition‖ which means that the people must sign on a petition that contain the full text of the proposed amendments (Lambino vs. COMELEC, infra). CHECK: But see Lambino vs. COMELEC, GR No. 174153, Oct. 25, 2006, where, in a minute resolution promulgated on Nov. 21, 2006, it was held therein that RA 6735 is sufficient and adequate as an enabling law to amend the Constitution through a people’s initiative. A people's initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast, Congress or a constitutional convention can propose both amendments and revisions to the Constitution. Article XVII of the Constitution provides (Lambino vs. COMELEC).

Section 3. The Congress may, by a vote of

two-thirds of all its Members, call a

constitutional convention, or by a majority

vote of all its Members, submit to the

electorate the question of calling such a convention.

Section 4. Any amendment to, or revision of,

this Constitution under Section 1 hereof shall

be valid when ratified by a majority of the

votes cast in a plebiscite which shall be held

not earlier than sixty days nor later than

ninety days after the approval of such

amendment or revision.

Any amendment under Section 2 hereof shall

be valid when ratified by a majority of the

votes cast in a plebiscite which shall be held

not earlier than sixty days nor later than

ninety days after the certification by the

Commission on Elections of the sufficiency of the petition.

DOCTRINE OF PROPER SUBMISSION Because the Constitution itself prescribes the time frame within which the plebiscite is to be held, there can no longer be a question on whether the time given to the people to determine the merits and demerits of the proposed amendment is adequate.


The plebiscite may be held on the same day as regular elections (Gonzales vs. COMELEC, 21 SCRA 774). The use of the word election in the singular meant that the entire constitution must be submitted for ratification at one plebiscite only; furthermore, the people have to be given a proper frame of reference in arriving at their decision. The submission of piece-meal amendments by the Constitutional Convention (which is tasked with the revision of the Constitution) was disallowed (Tolentino vs. COMELEC, 41 SCRA 702). Judicial Review of Amendments: The question is now regarded as subject to judicial review, because invariably, the issue will boil down to whether or not the constitutional provisions had been followed (Sanidad vs. COMELEC, 78 SCRA 333). The substance of the proposals are not subject to judicial review since what to propose is left to the wisdom of the constituent assembly. However, he manner of making the proposal is subject to judicial review. This is because a constituent assembly owes its existence and derives all its authority and power from the Constitution. Hence, whether or not it has acted according to constitution must always be a matter for judicial cognizance (Bernas, 2011). Matters which may be reviewed by the Court:

i. Whether or not a proposal was approved by the required number votes of Congress.

ii. Whether or not the approved proposals were properly submitted to the people for ratification (Tolentino vs. COMELEC, supra).

ARTICLE XVIII

TRANSITORY PROVISIONS

Section 1. The first elections of Members of

the Congress under this Constitution shall be held on the second Monday of May, 1987.

The first local elections shall be held on a date

to be determined by the President, which may

be simultaneous with the election of the

Members of the Congress. It shall include the

election of all Members of the city or

municipal councils in the Metropolitan Manila area.

Section 2. The Senators, Members of the

House of Representatives, and the local

officials first elected under this Constitution

shall serve until noon of June 30, 1992.

Of the Senators elected in the elections in

1992, the first twelve obtaining the highest

number of votes shall serve for six years and the remaining twelve for three years.

Section 3. All existing laws, decrees,

executive orders, proclamations, letters of

instructions, and other executive issuances

not inconsistent with this Constitution shall

remain operative until amended, repealed, or revoked.

Section 4. All existing treaties or

international agreements which have not

been ratified shall not be renewed or

extended without the concurrence of at least two-thirds of all the Members of the Senate.

Section 5. The six-year term of the

incumbent President and Vice-President

elected in the February 7, 1986 election is, for

purposes of synchronization of elections, hereby extended to noon of June 30, 1992.

The first regular elections for the President

and Vice-President under this Constitution

shall be held on the second Monday of May, 1992.

Section 6. The incumbent President shall

continue to exercise legislative powers until

the first Congress is convened.

Section 7. Until a law is passed, the

President may fill by appointment from a list

of nominees by the respective sectors, the

seats reserved for sectoral representation in

paragraph (2), Section 5 of Article V1 of this Constitution.

Section 8. Until otherwise provided by the

Congress, the President may constitute the

Metropolitan Manila Authority to be composed

of the heads of all local government units comprising the Metropolitan Manila area.

Section 9. A sub-province shall continue to

exist and operate until it is converted into a

regular province or until its component

municipalities are reverted to the mother province.

Section 10. All courts existing at the time of

the ratification of this Constitution shall

continue to exercise their jurisdiction, until


otherwise provided by law. The provisions of

the existing Rules of Court, judiciary acts, and

procedural laws not inconsistent with this

Constitution shall remain operative unless

amended or repealed by the Supreme Court

or the Congress.

Section 11. The incumbent Members of the

Judiciary shall continue in office until they

reach the age of seventy years or become


office or are removed for cause.

Section 12. The Supreme Court shall, within

one year after the ratification of this

Constitution, adopt a systematic plan to

expedite the decision or resolution of cases or

matters pending in the Supreme Court or the

lower courts prior to the effectivity of this

Constitution. A similar plan shall be adopted for all special courts and quasi-judicial bodies.

Section 13. The legal effect of the lapse,

before the ratification of this Constitution, of

the applicable period for the decision or

resolution of the cases or matters submitted

for adjudication by the courts, shall be

determined by the Supreme Court as soon as practicable.

Section 14. The provisions of paragraphs (3)

and (4), Section 15 of Article VIII of this

Constitution shall apply to cases or matters

filed before the ratification of this

Constitution, when the applicable period lapses after such ratification.

Section 15. The incumbent Members of the

Civil Service Commission, the Commission on

Elections, and the Commission on Audit shall

continue in office for one year after the

ratification of this Constitution, unless they

are sooner removed for cause or become


office or appointed to a new term thereunder.

In no case shall any Member serve longer

than seven years including service before the ratification of this Constitution.

Section 16. Career civil service employees

separated from the service not for cause but

as a result of the reorganization pursuant to

Proclamation No. 3 dated March 25, 1986 and

the reorganization following the ratification of

this Constitution shall be entitled to

appropriate separation pay and to retirement

and other benefits accruing to them under the

laws of general application in force at the

time of their separation. In lieu thereof, at the

option of the employees, they may be

considered for employment in the

Government or in any of its subdivisions,

instrumentalities, or agencies, including


and their subsidiaries. This provision also

applies to career officers whose resignation,

tendered in line with the existing policy, had been accepted.

Section 17. Until the Congress provides

otherwise, the President shall receive an

annual salary of three hundred thousand

pesos; the Vice-President, the President of

the Senate, the Speaker of the House of

Representatives, and the Chief Justice of the

Supreme Court, two hundred forty thousand

pesos each; the Senators, the Members of the

House of Representatives, the Associate

Justices of the Supreme Court, and the

Chairmen of the Constitutional Commissions,

two hundred four thousand pesos each; and

the Members of the Constitutional

Commissions, one hundred eighty thousand pesos each.

Section 18. At the earliest possible time, the

Government shall increase the salary scales

of the other officials and employees of the National Government.

Section 19. All properties, records,

equipment, buildings, facilities, and other

assets of any office or body abolished or

reorganized under Proclamation No. 3 dated

March 25, 1986 or this Constitution shall be

transferred to the office or body to which its

powers, functions, and responsibilities substantially pertain.

Section 20. The first Congress shall give

priority to the determination of the period for

the full implementation of free public

secondary education.

Section 21. The Congress shall provide

efficacious procedures and adequate remedies

for the reversion to the State of all lands of

the public domain and real rights connected

therewith which were acquired in violation of

the Constitution or the public land laws, or


through corrupt practices. No transfer or

disposition of such lands or real rights shall

be allowed until after the lapse of one year from the ratification of this Constitution.

Section 22. At the earliest possible time, the

Government shall expropriate idle or

abandoned agricultural lands as may be

defined by law, for distribution to the beneficiaries of the agrarian reform program.

Section 23. Advertising entities affected by

paragraph (2), Section 11 of Article XV1 of

this Constitution shall have five years from its

ratification to comply on a graduated and

proportionate basis with the minimum Filipino ownership requirement therein.

Section 24. Private armies and other armed

groups not recognized by duly constituted

authority shall be dismantled. All paramilitary

forces including Civilian Home Defense Forces

not consistent with the citizen armed force

established in this Constitution, shall be

dissolved or, where appropriate, converted into the regular force.

Section 25. After the expiration in 1991 of

the Agreement between the Republic of the

Philippines and the United States of America

concerning military bases, foreign military

bases, troops, or facilities shall not be allowed

in the Philippines except under a treaty duly

concurred in by the Senate and, when the

Congress so requires, ratified by a majority of

the votes cast by the people in a national

referendum held for that purpose, and

recognized as a treaty by the other

contracting State.

Section 26. The authority to issue

sequestration or freeze orders under

Proclamation No. 3 dated March 25, 1986 in

relation to the recovery of ill-gotten wealth

shall remain operative for not more than

eighteen months after the ratification of this

Constitution. However, in the national

interest, as certified by the President, the

Congress may extend such period.

A sequestration or freeze order shall be

issued only upon showing of a prima facie

case. The order and the list of the

sequestered or frozen properties shall

forthwith be registered with the proper court.

For orders issued before the ratification of this

Constitution, the corresponding judicial action

or proceeding shall be filed within six months

from its ratification. For those issued after

such ratification, the judicial action or

proceeding shall be commenced within six

months from the issuance thereof.

The sequestration or freeze order is deemed

automatically lifted if no judicial action or proceeding is commenced as herein provided.

Note: The lifting of the sequestration orders issued against the respondent does not ipso facto mean that the sequestered property is not ill-gotten. The effect of the lifting will merely be the termination of the role of government as conservator of the property (PCGG vs. Sandiganbayan, GR No. 119609-10, Sept. 21, 2001). The writ of sequestration may be issued only upon authority of at least two (2) PCGG Commissioners. Accordingly, the sequestration issued by the PCGG Task Force Head in Region VIII is not valid, not only because he did not have specific authority, to act on behalf of the Commission, but also because PCGG may not validly deluges its authority to sequester (Republic vs. Sandiganbayan, 258 SCRA 685). GR: The PCGG cannot perform acts of strict ownership of sequestered property as it is only a mere conservator of the property. It may not vote the shares in a corporation and elect members of the BOD. Exception: in case of take-over of a business belonging to the government or whose capitalization comes from public funds but which landed in private hands such as the Bataan Shipyard and Engineering Corp. (Cojuangco vs. Roxas, 195 SCRA 797). Sequestration does not automatically deprive the stockholders of their right to vote their shares of stocks. Until the main case is resolved, the right to vote is subject to the two-tiered test:

a. Whether there is a prima facie evidence showing that the said shares are ill-gotten and thus belong to the State; and


b. Whether there is an immediate danger of dissipation thus, necessitating their continued sequestration and voting (PCGG vs. Cojuangco, GR No. 133197, Jan. 22, 1999).

However, the two-tiered test does not apply involving funds of public character. In that, the government is granted the authority to vote said shares, namely:

1) Where government shares are taken-over by private persons or entities who/which registered them in their own names;

2) Where the capitalization or shares that were acquired by government funds somehow landed in private hands (Republic vs. Sandiganbayan, GR No. 107789, April 30, 2003).

Sandiganbayan can review the validity of sequestration orders (Republic vs. Sandiganbayan, 258 SCRA

685). The PCGG has the authority to enter into compromise agreements involving ill-gotten wealth and to grant

immunity in civil and criminal cases (Benedicto vs. Board Administrators, 207 SCRA 659). For penal violations under sec. 2 [a], EO No. 1 to fall within the jurisdiction of the PCGG [for purposes of conducting a preliminary investigation], the following elements must concur:

i. It must relate to ill-gotten wealth; ii. Of the late President Marcos, His immediate family, relatives, subordinates and close associates; iii. Who took advantage of their public office and or their power, authority, influence, connections or

relationship. Other violations of the Anti-Graft law, not fulfilling the elements are within the jurisdiction of the Ombudsman and other duly authorized investigating officers. A mere allegation in the complaint that the accused is a relative of then President Marcos is not sufficient to

enable the PCGG to take cognizance of the case. There must, in addition, be a showing that the accused has unlawfully accumulated wealth by virtue of such close relation with the former President (Araneta III vs. Sandiganbayan, 242 SCRA 482).

The SolGen may validly call the PCGG for assistance and ask it to respond to a motion for a bill of particulars considering that the PCGG has the complete records of the case (Virata vs. Sandiganbayan, GR No. 114331, May 27, 1997).

Section 27. This Constitution shall take effect immediately upon its ratification by a majority of

the votes cast in a plebiscite held for the purpose and shall supersede all previous Constitutions.

The foregoing proposed Constitution of the Republic of the Philippines was approved by the

Constitutional Commission of 1986 on the twelfth day of October, Nineteen hundred and eighty-six,

and accordingly signed on the fifteenth day of October, Nineteen hundred and eighty-six at the

Plenary Hall, National Government Center, Quezon City, by the Commissioners whose signatures

are hereunder affixed.


ADMINISTRATIVE LAW

GENERAL PRINCIPLES

…………………………………………………

Administrative Law: That branch of public law which fixes the organization and determines the competence of administrative authorities and indicates to the individual remedies for the violation of his rights.

Other Definition: that branch of public law under which the Executive department, acting in a quasi-legislative or quasi-judicial capacity, interferes with the conduct of the individual for the purpose of promoting the well-being of the community.

Sources of Administrative Laws:

1) Constitution; 2) Statutes creating administrative bodies; 3) Court decisions interpreting the charters of

administrative bodies; 4) Body of rules, regulations and orders issued

by administrative agencies.

KINDS a. Statutes setting up administrative authorities; b. Rules or regulations issued by such

administrative authorities; c. Determinations, decisions and orders of such

administrative authorities made in the settlement of controversies arising in their particular fields;

d. Body of doctrines and decisions dealing with the creation, operation and effect of determinations and regulations of such administrative authorities.

ADMINISTRATION [understood in two concepts]:

a. As a function – the execution, in non-judicial matters, of the law or will of the State as expresses by competent authority.

i. Internal Administration – covers rules defining the relations of public functionaries inter se and embraces the whole range of the law of public officers.

ii. External Administration – defines the relations of the public office with the public in general.

b. As an organization – that group or

aggregate of persons in whose hands the reins of the government are for the time being.

Administrative Bodies or Agencies: Organ of government, other that a court, and other than a legislature, which affects the rights of private parities either through adjudication or rule-making. Administrative Bodies are Created by:

a) Constitutional provision; b) Legislative enactment; c) Authority of law.

President’s Power to Create the Philippine Truth Commission; Basis – The president can legally create Philippine Truth Commission [PTC] under sec. 17, Art. VII of the Constitution, imposing upon the President the duty to ensure that the laws are faithfully executed. One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if the laws have been faithfully executed. However, the creation of the PTC is void for violating the equal protection clause because it singles out the previous [Arroyo] administration (Biraogo vs. PTC of 2010, GR No. 192935, Dec. 7, 2010). CRITERION A body or agency is administrative where its function is primarily regulatory even if it conducts hearings and determines controversies to carry out its regulatory duty. On its rule-making authority, it is administrative when it does no have discretion to determine what the law shall be but merely prescribes details for the enforcement of the law.

POWERS OF ADMINISTRATIVE BODIES

…………………………………………………

a. Quasi-legislative or rule-making power; b. Quasi-judicial or adjudicatory power; and c. Determinative powers.

Quasi-Legislative Quasi- Judicial

Power of subordinate legislation

Power of adjudication

Permits the body to

promulgate rules intended to carry out the provisions of particular

laws

Enables the body to resolve, in a manner essentially judicial,

factual and sometimes even legal questions

incidental to its primary power of enforcement of

the law

General application Specific application

Prescribing a rule for the future

Application of a rule for the past

Public in nature Private in nature


Publication is required in the issuance of legislative rules

Notice and hearings are generally required in

administrative adjudication

QUASI-LEGISLATIVE POWER [Rule-Making Power] Nature: This is the exercise of delegated legislative power, involving no discretion as to what the law shall be, but merely the authority to fix the details in the execution or enforcement of a policy set out in the law itself.

Rules and regulations issued by administrative authorities pursuant to the powers delegated to them have the force and effect of law; they are binding on all persons subject to them, and the courts will take judicial notice of them.

Both LOIs and EOs are presidential issuances; one may repeal or otherwise, alter, modify or amend the other, depending on which comes later (PASE vs. Torres, 225 SCRA 417).

The function of promulgating rules and regulations may be legitimately exercised only for the purpose of carrying out the provisions of the law into effect. It cannot extend the law or amend a legislative enactment, for settled is the rule that administrative regulations must be in harmony with the provisions of the law (Land Bank vs. CA, 249 SCRA 149).

Administrative agency, like the PPA, has no discretion whether or not to implement the law. Its duty is to enforce the law. In case of conflict between PPA circulars and a law like EO 1088, the latter prevails (Eastern Shipping Lines vs. CA, GR No. 116356, June 29, 1998).

KINDS OF ADMINISTRATIVE RULES OR REGULATIONS

a) Legislative Rule [Supplementary or detailed legislation] – Rules and regulations ―to fix details‖ in the execution and enforcement of a policy set out in the law – like the RR Implementing the Labor Code.

b) Interpretative legislation- they are the rules and regulations construing or interpreting the provisions of a statute to be enforced and they are binding on all concerned until they are changed – BIR Circulars and CB Circulars.

Legislative Rule Interpretative Rule

Implement and

provide details in the law

Do no more than clarify the statute

being administered for proper

observance by the people

Have the force and effect of a law

Only advisory for the courts have the final

say to interpret

Issued pursuant to a valid delegation of legislative power

Issued as an incident of its power to enforce the law

Must be published Need not be published

c) Contingent legislation – they are rules and regulations made by an administrative authority on the existence of certain facts or things upon which the enforcement the law depends

Requisites for Validity: i. Issued under authority of law; ii. Within the scope and purview of the law;

Sec. 17 of the Rules and Regulations

implementing RA 8171 which provided that the death penalty shall not be inflicted upon a woman within 3 years next following the date of the sentence or while the woman is pregnant was declared invalid, the same being an impermissible contravention of art. 83 of the RPC, which provides that the death penalty shall not be inflicted upon a woman while she is pregnant or within one year after delivery (Echegaray vs. Sec. of Justice, GR No. 132601, Oct. 12, 1998).

iii. Reasonable; Standards of Reasonableness –

a. must involve public welfare; b. the method employed must be

reasonably related to the purpose of the rule;

c. not arbitrary; d. must declare the legislative policy.

iv. Promulgated in accordance with the prescribed

procedure. Notice and Hearing – generally, administrative regulations of general application do not require previous notice and hearing. It is essential only when:

a. the legislature itself requires it and mandates that the regulation shall be based on certain facts as determined at an appropriate investigation;


b. the regulation is a settlement of a controversy between specific parties.

Fortune Tobacco Doctrine: When an administrative rule goes beyond merely providing for the means that can facilitate or render less cumbersome the implementation of the law and substantially increases the burden of those governed, it behooves the agency to accord at least to those directly affected a chance to be heard and, thereafter, to be duly informed, before the issuance is given the force and effect of law (CIR vs. CA, GR No. 119761, Aug. 29, 1996).

v. Publication in the Official Gazette or in a newspaper of general circulation, as provided in EO No. 200);

vi. Filing with the UP Law Center as required by the Administrative Code of 1987.

Additional requisites for administrative rules with penal sanctions:

i. The law itself must itself declare as punishable the violation of the administrative rule or regulation (P. vs. Maceren, 79 SCRA 450);

ii. The law should define or fix the penalty for the violation of the administrative rule or regulation.

iii. rule or regulation must be published. The following need not be published in the OG or newspaper of general circulation; simply posting them is conspicuous places in the agency is enough –

a) Interpretative rules and regulation; b) Rules that are merely internal in nature; c) Letters of instruction to be followed by their

subordinates in the performance of their duties.

There is no constitutional requirement for a hearing in the promulgation of a general regulation by an administrative body. Prior hearing is not necessary for the issuance of an administrative rule or regulation (Corona vs. United Harbor Pilots, GR No. 111953, Dec. 12, 1997). However, the SC distinguish between interpretative and rules in the nature of subordinate legislation (CIR vs. CA, 261 SCRA 236) –

a. Subordinate legislation designed to implement the law requires, before its adoption, hearing as required by the Administrative Code of 1997);

b. Interpretative rules do not need prior hearing before their adoption

It was held that the function of prescribing rates, by an administrative agency, may either be legislative or an adjudicatory function (Phil. Consumers Foundation vs. Sec., DECS, 153 SCRA 622) –

a. If legislative function – the grant of prior notice and hearing is not a requirement of due process;

b. If in the exercise of adjudicatory function – prior notice and hearing are essential to the validity of the rates.

TEST: If the rates are meant to apply to all enterprises of a given kind throughout the country, they may partake of a legislative character. But if they apply o a particular party, based upon a finding of fact, then its function is quasi-judicial in character. DETERMINATIVE POWERS 1. Enabling: to permit or allow something which the

law undertakes to regulate – like the grant or denial of licenses to engage in a particular business.

2. Directing: illustrated by the power of assessment of the BIR or the COC.

3. Dispensing: to exempt from general prohibition, or relieve an individual or corporation from an affirmative duty – authority of Zoning Boards to vary the provisions of zoning ordinance.

4. Examining: also called the investigatory power; consists in requiring the production of books, papers, etc. the attendance of witnesses and compelling their testimonies.

Power to punish for contempt must be expressly granted to the administrative body; and when granted, is exercised only when the body is exercising adjudicatory functions.

5. Summary: power to apply compulsion or force

against persons or property to effectuate a legal purpose without judicial warrant to authorize such action, abatement of nuisance, health and sanitary inspections, etc.

Ordinance Power of the President The President’s ordinance power is executive’s rule-making authority in implementing or executing constitutional or statutory powers. Chapter 2, Title 1, Book III of the Administrative Code of 1987. a. Executive Orders – Acts of the President

providing for rules of a general or permanent character in implementation or execution of constitutional or statutory powers.

b. Administrative Orders – Acts of President which relate to particular aspects of governmental operations pursuance of his duties as administrative head.


c. Proclamations - Acts of the President fixing a date or declaring a status or condition of public moment or interest upon the existence of which the operation of a specific law or regulation is made to depend.

d. Memorandum Orders – Acts of the President on matters of administrative detail or of subordinate or temporary interest which only concern a particular officer or office of the Government.

e. Memorandum Circulars – Acts of the President on matters relating to internal administration, which the President desires to bring to the attention of all or some of the departments, agencies, bureaus or offices of the government, for information or compliance.

f. General or Special Orders – Acts and commands of the President in his capacity as Commander-in-Chief of the AFP.

Note: President’s ordinance power is limited to those issuances mentioned in the foregoing provision. She cannot issue decrees similar to those issued by former President Marcos under Presidential Proclamation 1081. The PDs are laws which are of the same category and binding force as statutes because they were issued by the president in the exercise of his legislative power during the period of Martial law under the 1973 Constitution (David vs. Arroyo, GR No. 171396, May 3, 2006). Doctrine of Legislative Approval by Re-Enactment – the rules and regulations promulgated by the proper administrative agency implementing the law are deemed confirmed and approved by the legislature when said law was re-enacted by later legislation or through codification. The legislature is presumed to have full knowledge of the contents of the regulations then at the time of re-enactment. QUASI-JUDICIAL POWER The power of the administrative agency to determine questions of fact to which the legislative policy is to apply, in accordance with the standards laid down by the law itself. Nature of Proceedings: Partake of the character of judicial proceedings. Administrative body is normally granted the authority to promulgate its own rules of procedure, provided, they do not increase, diminish or modify substantive rights, and subject to disapproval by the SC. Requisites for proper exercise of Power: 1) Jurisdiction must be properly acquired by the

administrative body; 2) Due process must be observed in the conduct of

the proceeding.

ADMINISTRATIVE DUE PROCESS [Ang Tibay vs. CIR, 40 OG 7

th Supp. 129]:

i. Right to a hearing; ii. Tribunal must consider the evidence

presented; iii. Decision must have something to support

itself; iv. Evidence must be substantial;

Substantial evidence: such relevant evidence as reasonable mind might accept as adequate to support a conclusion.

v. Decision must be based on the evidence

adduced at the hearing, or at least contained in the record and disclosed to the parties;

vi. The Board or its judges must act on its or their independent consideration of the facts and law of the case, and not simply accept the views of a subordinate in arriving at a decision;

vii. Decision must be rendered in such a manner that the parties to the controversy can know the various issues involved and the reason for the decision.

The SC held that in a forfeiture proceeding where the owner of the allegedly prohibited article is known, mere posting of the notice of hearing in the respondent’s bulletin board does not constitute compliance with procedural due process (Paterok vs. BOC, 193 SCRA 132). Due process demands that the person be duly informed of the charges against him. He cannot be convicted of an offense with which he was not charged. In administrative proceedings, due process simply means the opportunity to explain one’s side or the opportunity to seek a reconsideration of the action or ruling complained of; a formal or trial-type hearing is not, at all times, necessary (Padilla vs. Santo Tomas, 243 SCRA 155). Administrative due process does not necessarily require the assistance of counsel. (Lumiqued vs. Exenea, GR No. 117565). Administrative due process cannot be fully equated to due process in the strict judicial sense. The standard of due process that must be met in administrative tribunals allows a certain latitude as long as the element of fairness is not ignored; even in the absence of previous notice, there is no denial of due process as long as the parities are given opportunity to be heard (Adamson vs. Amores, 152 SCRA 237).


The Right to be Heard Does not mean only verbal arguments in court; one may also be heard through pleadings or position papers (Casimiro vs. Tandog, GR No. 146137, June 8, 2005). Prior notice and hearing are held not necessary in the following: 1) Grant of provisional authority for increased

rates, or to engage in a particular line of business (RCPI vs. NTC, 184 SCRA 517);

2) Summary proceedings of distraint of and levy upon property of a delinquent taxpayer;

3) Cancellation of passport where no abuse of discretion is committed by the Sec. of Foreign Affairs (Suntay vs. P., 101 Phil. 770);

4) Summary abatement of a nuisance per se which affects the immediate safety of persons or property (art. 704, NCC);

5) Preventive suspension of a public officer pending investigation of the administrative charges against him (sec. 51, Book V, Title I, Administrative Code of 1987).

Note: Administrative decisions not part of the legal system, but only the decisions of the SC applying and interpreting the Constitution [statutes] (art. 8, NCC). ADMINISTRATIVE APPEAL AND REVIEW

1) Where provided by law, appeal from an administrative determination may be made to a higher or superior administrative officer or body.

2) The President, or through the Department secretaries, as an alter ego, by virtue of power of control over all executive departments.

3) The appellate administrative agency may conduct additional hearings in appealed case, if deemed necessary (Reyes vs. Zamora, 90 Phil. 92).

Operative Fact Doctrine in Administrative Law: It does not only apply to laws subsequently declared unconstitutional or unlawful, as it also applies to executive acts subsequently declared as invalid. The phrase ―executive acts‖ is broad enough to encompass decisions of administrative bodies under executive department which are subsequently revoked by the agency in question or nullified by the SC (HLI vs. Presidential Agrarian Reform Council, supra). The Doctrine of Res Judicata Decisions and final orders of administrative agencies have upon their finality, the force and binding effect of a final judgment within the purview of the doctrine

of res judicata (Ysmael vs. Deputy Executive Secretary, 190 673).

Note: Applies only in the exercise of quasi-judicial power (United Pepsi Cola Supervisory Union vs. Laguesma, 288 SCRA 15).

However, the doctrine of administrative res judicata does not apply in administrative adjudication relative to citizenship, as a rule (Board of Commissioners, CID vs. Judge de la Rosa, 197 SCRA 853.

For the exception see topic on citizenship. The Laguna Lake Development Authority has regulatory and quasi-judicial powers in respect to pollution cases, with authority to issue ―cease and desist order‖, and on matters affecting the construction of illegal fishpens, fish cages, and other aqua-culture structures in Laguna de Bay, pursuant to RA 4850 (LLDA vs. CA, 251 SCRA 42). The DECS (now DepEd) Regional Director has the authority to issue a return-to-work order to striking teachers, to initiate administrative charges and to constitute an investigating panel (Regional Director vs. CA, GR No. 110193, Jan.17, 1995). The HLURB has the power to hear and decide cases of unsound real estate business practices and cases of specific performance (Realty Exchange Venture vs. Sendino, GR No. 109703, July 5, 1995). By virtue of RA 7638, it is now the Department of Energy (DOE) [and not the Energy Regulatory Board], that has jurisdiction over disputes involving direct connection of electric power. Exploration, production, marketing, distribution, utilization or any activity involving any energy resource or product falls within the supervision and control of the DOE (ERB vs. CA, GR No. 127373, March 25, 1999). Disputes involving homeowners associations fall within the jurisdiction of the Home Insurance Guarantee Corporation, as expressly provided in RA 580 (Unilongo vs. CA, GR No. 123910, April 5, 1999).

Other Powers and Functions of Administrative Agencies

a. Fixing rates, wages and prices –

i. Legislative function: The rates are meant to apply to all enterprises of a given kind throughout the country (prior notice and hearing not required).

ii. Quasi-Judicial function: Rates apply exclusively to a particular party, based upon


a finding of fact (prior notice and hearing required).

Factors to consider in rate fixing:

1) rates should not be confiscatory; 2) should provide reasonable returns of

investments; 3) must be reasonable and just.

Provisional Authority: an order granting a temporary permit to operate a particular utility service immediately issued during the pendency of an application for a franchise or certificate of public convenience for said service on the main ground of urgent public need therefore.

b. Licensing - The action of an administrative agency in granting or denying or suspending or revoking a license, permit or franchise is not purely administrative but quasi-judicial since it is dependent upon the ascertainment of facts by the administrative agency, upon which a decision is to be made and rights and liabilities determined.

c. Investigative – Administrative agencies can be authorized to make investigations for a limited purpose, which is to obtain information on which future action or a legislative or judicial nature may be taken.

DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES

GR: Whenever there is an available administrative remedy provided by law, no judicial recourse can be made until all such remedies have been availed of and exhausted. REASONS:

i. If relief is first sought from a superior administrative officer/agency, resort to the courts may be unnecessary.

Under applicable jurisprudence, petitioner’s omission renders their complaint dismissible for failure to state a cause of action.

However, failure to file a motion to dismiss is deemed a waiver (Soto vs. Jareno, 144 SCRA 116).

ii. The administrative agency should be given a

chance to correct its error. iii. Principles of comity and convenience

requires the courts to stay their hands until the administrative process are completed.

iv. Since judicial review of administrative decisions is usually made through special civil actions, such proceedings will not normally prosper if there is another plain, speedy and adequate remedy in the ordinary course of law.

Note: The Doctrine, however, applies only when

the administrative agency renders a decision or order in the exercise of adjudicatory function (APCD vs. PCA, GR No. 110526, Feb. 10, 1998).

Thus, where the assailed is the validity of a rule or regulation is in the performance of quasi-legislative function, regular courts [RTC, in an action for declaratory relief] have jurisdiction to pass upon the same (Smart Tel. vs. NTC, GR No. 151908, Aug 12, 2003).

Exceptions to the Doctrine Exhaustion of Administrative Remedies 1. Doctrine of qualified political agency; 2. Where the administrative remedy is fruitless –

like suit for recovery of title to office must be instituted within one year from illegal ouster, otherwise the action prescribes.

3. Where the issue involved is purely legal question;

4. Where the administrative action is patently illegal, amounting to lack or excess of jurisdiction;

5. Where there is unreasonable delay or official inaction;

6. When there is estoppel on the part of the administrative agency;

7. When there is irreparable injury or threat thereof; 8. In land cases, where the subject matter is a

private land; 9. Where the law does not make exhaustion a

condition precedent to judicial recourse; 10. Where the observance of the doctrine will result

in the nullification of the claim; 11. Where there are special reasons or

circumstances demanding immediate court action;

12. When there is violation of due process of law; 13. When the rule does not provide a plain, speedy

and adequate remedy. 14. DOCTRINE OF PRIOR RESORT [aka Doctrine of Primary Jurisdiction] Where there is competence or jurisdiction vested upon an administrative body to act upon a matter, no resort to the courts may be made before such administrative body shall have acted upon the matter.


The courts cannot and will not resolve a controversy involving a question which is within the jurisdiction of an administrative tribunal, where the question demands the exercise of sound administrative discretion requiring special knowledge, experience and services of the administrative tribunal to determine technical and intricate matters.

The SC directed the CA to suspend action on cases brought before the later until the final outcome of the administrative investigation, conformably with the doctrine of primary administrative jurisdiction (Regional Director vs. CA, supra.).

Questions relative to compliance with the

requirements for the conversion of subdivision lots are properly cognizable by the HLURB. Thus, no resort to the courts may be made before the administrative body shall have acted upon the matter (Cristobal vs. CA, 291 SCRA 122).

The lumber forfeited under PD 705 which the petitioner sought to recover came under the custody of the DENR, and all actions seeking to recover possession thereof should be directed to that agency, before resort to the courts may be made (Sy vs. CA, GR No. 121587, March 9, 1999).

The matter of issuing licenses to operate radio stations is lodged with the NTC. It is in the better position than the courts to determine whom the privilege should be granted. The doctrine of primary jurisdiction prevents the court from arrogating unto itself the authority to resolve a controversy which falls under the jurisdiction of a tribunal possesses with special competence (CBS vs. NTC, GR No. 139583, May 31, 2000).

Under EO No. 1008, the Construction Industry Arbitration Commission has original and exclusive jurisdiction over disputes arising of connected with the construction contracts entered into by the parities who have agreed to submit their disputes to voluntary arbitration (Philrock vs. CIAC, GR No 132848-49, June 28, 2001).

The jurisdiction of DARAB include all agricultural

lands under the coverage of the CARP including private lands devoted to or suitable for agriculture, as defined in sec. 4, of the law. Accordingly the DARAB may properly take cognizance of a case involving a complaint for redemption, it being a case concerning the rights of respondents as tenants on agricultural land

(Sarne vs. Maquiling, GR NO. 138839, May 9, 2002).

The Pollution Adjudication Board is tasked with determining whether the effluents of a particular industrial establishment comply with or violate applicable anti-pollution statutory and regulatory provisions. It can issue ex parte ―cease and desist order‖ (Estrada vs. CA, GR No. 137862, Nov. 11, 2004).

However, where the petitioner sued the school for damages before the RTC for preventing her from taking the final exams due to her failure to pay for tickets for a school fund-raising activity, the SC said the CHED has no jurisdiction to award damages, and thus, petitioner could not have commenced her case before the CHED (Regino vs. Pangasinan Colleges, GR No. 156109, Nov. 18, 2004).

COMMENT: The case could have been different if what is sought is the disciplinary action against the erring school officials. DOCTRINE OF FINALITY OF ADMINISTRATIVE ACTION GR: No resort to the courts will be allowed unless the administrative action has been completed and there is nothing left to be done in the administrative structure.

This rule is similar to the doctrine of exhaustion of administrative remedies.

A party aggrieved must not only merely initiate the prescribed administrative procedure to obtain relief, but must also pursue it to its appropriate conclusion before seeking judicial intervention in order to give that administrative agency an opportunity to decide the matter by itself correctly and prevent unnecessary resort to the courts (Zabat vs. CA, 338 SCRA 551). JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS GR: except when the Constitution requires or allows it, judicial review may be granted or withheld as Congress chooses. Thus, the law may provide that a determination made by an administrative agency shall be final and unreviewable. Note: This is without prejudice to the expanded power of judicial review of the vested in the judiciary. Thus, quasi-judicial power will always be subject to true judicial power (NHA vs. Almeida, GR No. 162784, June 22, 2007).


BASES FOR JUDICIAL REVIEW 1. The Constitution – like sec. 7, Art. IX-A. 2. Statutes – BP 129, in relation to Rule 43, ROC. 3. General principles of law. There is an underlying power in the Courts to scrutinize the acts of administrative agencies on questions of law and jurisdiction although no right of review is given by statute. It is designed to keep the administrative agency within its jurisdiction and to protect substantial rights of parties affected by its decisions. It is part of the system of checks and balances (San Miguel Corporation, vs. Sec. of Labor, 1975).

Methods of obtaining Judicial Review – Classes: A. Statutory – available pursuant to specific

statutory provisions; or Non-statutory – where there is no express statute granting review, relief is obtain by means of common law remedies, or by the prerogative writs of certiorari, prohibition, mandamus, habeas corpus, or quo warranto.

B. Direct – attempt to question in subsequent proceedings the administrative action for lack of jurisdiction, grave abuse of discretion, etc.; or Collateral – relief from administrative action sought in a proceeding the primary purpose of which is some relief other that the setting aside of the judgment, although the attack on the judgment may only be incidental. Note: Some administrative judgments are not subject to collateral attack, like that of citizenship of a person (Co vs. HRET, supra).

What Court Has Jurisdiction: The Court of Appeals

See Rule 43, ROC, in Remedial Law Reviewer.

Note: When the law provides for an appeal to the SC or to the CA, it means that such bodies are co-equal with the RTC, in terms of rank and stature, and logically, beyond the control of the latter. It bears stressing that this doctrine of non-interference by trial courts with co-equal administrative bodies is intended to ensure judicial stability in the administration of justice whereby the judgment of a court of competent jurisdiction may not be opened, modified, or vacated by any court of concurrent jurisdiction. However, there is nothing in the law creating the Commission on Immigration and Deportation [now Bureau of Immigration] which provides that its decisions may only be reviewed by the CA, accordingly review by the RTC was upheld (Board of Commissioners, CID vs. Judge de la Rosa, supra).

Likewise, the decision of a court martial may be reviewed by the RTC (Commendador vs. de Villa, 200 SCRA 80). The LLDA, although has express powers as regulatory and quasi-judicial body, it is not co-equal to the RTC (LLDA vs. CA, supra). Questions which may be subject of judicial review: 1) Questions of law. 2) Questions of fact. GR: Factual findings of administrative agencies are, generally, conclusive upon the courts if supported by substantial evidence. (sec. 10, Rule 43, ROC). Exceptions: 1) Factual findings not supported by evidence; 2) Findings are vitiated by fraud, imposition or

collusion; 3) Procedure which led to factual findings is

irregular; 4) Palpable errors are committed; 5) Grave abuse of discretion, arbitrariness or

capriciousness is manifest; 6) when expressly allowed by statute; and 7) Error in appreciation of the pleadings and in the

interpretation of the documentary evidence presented by the parties.

See also annotations on Rule 45, ROC, in

Remedial Law Reviewer; as it may also properly apply as exceptions to the GR.

Mixed Questions of Law and Facts [Brandeis Doctrine of Assimilation of Facts]: Where what purports to be a finding upon a question of fact is so involved with and dependent upon a question of law as to be in substance and effect a decision of the latter, the Court will, in order to decide the legal question, examine the entire record including the evidence if necessary. Judicial review is not trial de novo: It is merely an ascertainment of whether the findings of the administrative agency are consistent with law, free from fraud or imposition, and supported by evidence. Judicial Relief from Threatened Administrative Action: Courts will NOT render a decree in advance of administrative action and thereby render such action nugatory. It is not for the court to stop an administrative officer from performing his statutory duty for fear that he will perform it wrongly.


THE LAW ON PUBLIC OFFICERS

GENERAL PRINCIPLES

……………………………………………

Law on Public Officers - Deals with public office, its creation, modification and dissolution, as well as the eligibility of public officers, the manner of their election or appointment and assumption of office, their rights, duties, powers, inhibitions and liabilities and the modes of terminating their official relations (Cruz, 2007). PUBLIC OFFICE The right, authority or duty, created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, and individual is vested with some sovereign power of government to be exercised by him for the benefit of the public (Fernandez vs. Sto. Tomas, GR No. 116418, March 7, 1995). Elements: 1) Created by law or by authority of law; 2) Possess a delegation of a portion of the

sovereign powers of government, to be exercised for the benefit of the public;

3) Powers conferred must be defined, directly or impliedly, by the legislature or by legislative authority;

4) Duties must be performed independently and without control of a superior power other than the law, unless they be those of an inferior or subordinate office created or authorized by the Legislature, and placed under the general control of a superior office or body;

5) Must have permanence or continuity. Creation: a) By the Constitution; b) By valid statutory enactments; and c) Authority of law. Characteristics of Public Office: 1) Public office is a public trust; 2) Public office is not a private property, and is

personal to the incumbent; Where a controversy relates to the question

as to who of two persons is entitled thereto, a public office may be considered property within the protection of due process of law (Cruz, 2007).

3) it is not subject to contract [like term sharing agreements];

4) There can be no vested right in public office or its salary, except certain Constitutional offices.

Definitions of Public Officer - 1) PUBLIC OFFICER: A person ho holds a public

office.

2) Art. 203, RPC. Who are public officers.

— For the purpose of applying the

provisions of this and the preceding titles

of this book, any person who, by direct

provision of the law, popular election or

appointment by competent authority, shall

take part in the performance of public

functions in the Government of the

Philippine Islands, of shall perform in said

Government or in any of its branches

public duties as an employee, agent or

subordinate official, of any rank or class,

shall be deemed to be a public officer.

3) (b) "Public officer" includes elective and

appointive officials and employees,

permanent or temporary, whether in the

classified or unclassified or exempt service

receiving compensation, even nominal,

from the government as defined in the

preceding subparagraph (sec.2 [b], RA

3019). Although the NIRC authorizes the BIR to effect constructive distraint by requiring any person to preserve the distrained property, there is no provision constituting such person as a public officer by reason of such requirement. Sandiganbayan, therefore, has no jurisdiction over the case involving such person (Azarcon vs. Sandiganbayan, 268 SCRA 747). TEST whether a person is a public officer or an employee: The most important characteristic which distinguishes an office from an employment is that the creation and conferring of an office involves a delegation to the individual of some of the sovereign functions of government, to be exercised by him for the benefit of the public, either, legislative, executive, or judicial. Otherwise, he is not a public officer (Laurel vs. Desierto, GR No. 145368, April 12, 2002).


Public Officer Employee

Delegation to the individual of some of the sovereign functions of

government

Does not involve the exercise of some portion

of the sovereign functions of the state

Involves exercise of discretion

Duties are clerical or manual in nature

Required to take an oath [on some instances, an

official bond]

Oath and bond are not required

Classifications of Public Officer: 1) Constitutional or statutory; 2) national or local; 3) Legislative, executive or judicial; 4) Lucrative or honorary; 5) Discretionary or ministerial; 6) Appointive or elective; 7) Civil or military; 8) De jure or de facto.

ELIGIBILITY and QUALIFICATION

………………………………………… Eligibility – the state of being legally fitted or qualified to be chosen. Eligible – under the Administrative Code, it is used to refer to a person who obtains a passing grade in a civil service examination and whose name is entered in the register of eligibles from which appointments must be made (Book V, Title I, Chap. 1, sec. 5[8]). Qualification – as understood in two senses: a) As endowments – qualities or attributes which

make an individual eligible for public office [citizenship, age, etc.].

b) As an act – the act of entering into the performance of the functions [taking an oath of office].

When understood in the sense of endowments, qualities or attributes, the individual must possess the qualifications at the time of the appointment or election and continuously for as long as the official relationship continues. (see Frivaldo vs. COMELEC, 257 SCRA 727). Note: Property qualifications may not be imposed for the exercise of the right to run for public office. The SC declared as unconstitutional the law requiring each candidate to post a bond of 20,000 pesos, upon the filing of the COC, subject to forfeiture if he did not obtain at least 10% of the total votes cast in the constituency where he run (Maquira vs. Borra, 15 SCRA 7).

COMMENT: This should be taken together with the power of the COMELEC to disqualify nuisance candidates. A national candidate, who may not be able to wage a nationwide campaign, may properly be declared as a mere nuisance. It this particular case, it may be ―impliedly‖ understood that financial capacity may be a form of a requirement to run for public office. See also Pamatong vs. COMELEC, supra). When referring to the act of entering into the performance of the functions of the office, failure of an officer to performance act required by law could affect his title to the given office. Note of the following provision of the RPC –

Art. 236. Anticipation of duties of a

public office. — Any person who shall

assume the performance of the duties and

powers of any public officer or

employment without first being sworn in

or having given the bond required by law,

shall be suspended from such office or

employment until he shall have complied

with the respective formalities and shall

be fined from 200 to 500 pesos. Also, prolonged failure or refusal to take the oath of office could result in forfeiture of the office. Sec. 11, BP 881 provides:

―The office of any elected official who fails

or refuses to take his oath of office within

six months from his proclamation shall be

considered vacant, unless said failure is

for a cause or causes beyond his control.‖

An oath of office is a qualifying requirement of public office. Until then, he has none at all, and for as long as he has not qualified, the hold-over officer is the rightful occupant (Lecaroz vs. Sandiganbayan, GR No. 130872, March 25, 1999). An oath of office taken before one who is not authorized to administer oath is no oath at all. Once proclaimed and duly sworn to office, a public officer is entitled to assume office and exercise the functions thereof despite the pendency of an election protest (Mendoza vs. Laxina, GR No. 146875, July 14, 2003). Authority to Prescribe Qualifications: a. When prescribed by the Constitution, they are

generally exclusive, except when otherwise provided by the Constitution.


b. Congress, has virtually plenary power to prescribe qualifications provided that –

i. Qualifications are germane to the objectives of the public office was created;

ii. Qualifications are not too specific as to fit a particular, identifiable person, because that would deprive the appointing authority of discretion in the selection of the appointee (Flores vs. Drilon, GR No. 104732, June 22, 1993).

Duration of Qualification Qualifications are continuing requirements which means that they must be possessed not only on the date of selection or assumption but for the full duration of the officer’s incumbency.

a. The prescribed qualifications must be possessed at the earliest on the date indicated by the Constitution or the law;

b. If there is no similar indication, it suffices if the qualifications are possessed at the time of assumption of office;

c. The reckoning point in determining the qualifications of an appointee is the date of the issuance of the appointment and not the date of its approval by the CSC (CSC vs. de la Cruz, GR no. 158737, Aug. 31, 2004).

Disqualification – presence of circumstances and qualities which makes an individual ineligible from holding a public office. Lack of disqualification is itself a qualification. Authority to Prescribe Disqualification The legislature has the right to prescribe disqualifications, provided that it does no violate the Constitution.

Thus, a part of a law which provided that a mere filing of a criminal information for disloyalty to the Republic was prima facie proof of guilt, and thus sufficient to disqualify a person, is violative of the Constitutional presumption of innocence (Dumlao vs. COMELEC, 95 SCRA 400).

General Grounds for Disqualification, as may be provided by law:

a. Unfitness for public office; or b. The person is rendered ineligible for the

office. General Grounds for Disqualification under the Constitution: 1) No candidate who lost in an election shall within

one year after such election, be appointed to any office in government;

2) No elective officials shall be eligible for appointment or designation in any capacity to any public office or position during his tenure.

3) Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other position in government.

Specific Disqualifications under the Constitution:

1) Sec. 13, Art. VII; 2) Sec. 13, Art. VI; 3) Sec. 12, Art. VIII; 4) Sec. 2, Art. IX-A; 5) Sec. 8, Art. XI; 6) Sec. 11, Art. XI; 7) Sec. 1, Art. IX-B; 8) Sec. 1, Art. IX-C; 9) Sec. 1, Art. IX-D; 10) Sec. 1 [2], Art. IX-B; 11) Sec. 1 [2], Art. IX-C; 12) Sec. 1 [2], Art. IX-D;

COMMENCEMENT OF OFFICIAL RELATIONS [Modes of Acquiring Title to Office]

1) By appointment; or 2) By election.

Appointment Commission

Designation

The selection, by the authority

vested with the power, of an

individual who is to perform the functions of a given office.

The written evidence of

the appointment

.

The imposition of additional

duties, usually by law, on a

person already in public service.

Requisites for a Valid Appointment 1) The appointing authority must be vested with the

power to appoint at the time appointment is made;

2) The appointee should possess all the qualifications including appropriate civil service eligibility and none of the disqualifications;

3) The position is vacant; 4) The appointment has been approved by the

CSC [or confirmed by the Commission on Appointments, when required];

5) The appointee accepts the appointment by taking the oath and entering into discharge of duty (Garces vs. CA, GR No. 114795, July 17, 1996).


CLASSIFICATIONS

A. Permanent and temporary: i. Permanent – is extended to a person

possessing the requisite qualifications, including the eligibility required, for the position, and thus, protected by the Constitutional guarantee of security of tenure.

ii. Temporary – is an acting appointment; it is extended to one who may not possess the requisite qualifications or eligibility required by law for the position, and is revocable at will, without the necessity of just cause or a valid investigation.

Temporary appointment shall not exceed 12 months, pursuant to sec. 13 [b], Omnibus Rules Implementing Book V Administrative Code of 1987).

The acquisition of the appropriate civil service

eligibility will not ipso facto convert the temporary appointment into a permanent one, a new appointment is necessary (Maturan vs. Maglana, 113 SCRA 268).

Subsequent acquisition of the appropriate civil cervice eligibility is no reason to compel appointing authority to reappoint the officer (Gloria vs. Judge de Guzman, GR No. 116183, Oct. 6, 1995).

The mere fact that a position belongs to the career service does not automatically confer security of tenure. Such right will have to depend on the nature of the appointment which, in turn, depends on the appointee’s eligibility or lack of it (De Leon vs. CA, GR No. 127182, Jan. 22, 2001)

The acceptance by the petitioner of a temporary

appointment resulted in the termination of official relationship with his former permanent position. When the temporary appointment was not renewed, he had no cause to demand reinstatement thereto (Romualdez III vs. CSC, 197 SCRA 168).

A mere designation does not confer security of tenure as the person designated occupies the position only in an acting capacity (Sevilla vs. CA, 209 SCRA 637).

Where the appointment is subject to a condition – like that there is no pending protest against the appointment or any decision by competent authority which will adversely affect the approval

of the appointment – the appointment is not permanent (Sinon vs. CSC, 215 SCRA 410).

When the employment is qualified by the phrase ―unless terminated sooner‖, it is clear that even if the employment is co-terminous with the project, the employee nevertheless serves at the pleasure of the appointing authority (Orcullo vs. CSC, GR No. 138780, May 22, 2001).

However, where the temporary appointment is for a fixed period, the appointment may be revoked only at the expiration of the period or, if revocation is made before such expiration, the same has to be for a valid and just cause (Ambas vs. Buenaseda, 201 SCRA 308).

Government employees holding career civil service positions appointed under a provisional or temporary basis who have rendered at least 7 years of efficient civil service may be granted civil service eligibility (sec. 1, RA 6850).

B. Regular and ad interim. See the Power of Appointment of the President in Art. VII, of the Constitution. STEPS IN APPOINTING PROCESS a. Regular Appointments

i. Nomination by the President; ii. Confirmation by the Commission on

Appointments; iii. Issuance of the commission; iv. Acceptance by the appointee.

b. For ad interim appointments – the nomination,

issuance of the appointment and acceptance by the appointee precede the confirmation by the Commission on Appointments.

c. For appointments which do not require confirmation:

i. Appointment by the appointing authority; ii. Issuance of the commission; iii. Acceptance by the appointee.

d. Where the appointment is to the career service

of the Civil Service – attestation by the CSC is required. The appointment to the career service of the civil service is not deemed complete until attestation/approval by the CSC.

The Omnibus Rules Implementing Book V,

EO No. 292 provides that an appointment not submitted to the CSC within 30 days from issuance [date appearing on the face of appointment] shall be ineffective.


Without the favorable certification or approval of the CSC, no title to the office can yet be deemed to be permanently vested in favor of the appointee, and the appointment can still be revoked by the appointing authority. It would likewise be precipitate to invoke security of tenure (Tomali vs. CSC, GR No. 110598, Dec. 1, 1994).

For the appointment to be valid, the position must be vacant (Costin vs. Quimbo, 120 SCRA 159).

Where private respondent refused to vacate his office because he was being transferred without consent, the SC said that the appointment of the petitioner was invalid because the position to which he was appointed was not vacant (Garces vs. CA, 259 SCRA 99).

DISCRETION OF THE APPOINTING AUTHORITY Appointment is essentially discretionary power and must be performed by the officer in whom it is vested according to his best lights, the only condition being that the appointee should possess the minimum qualification requirements prescribed by law for the position (Luego vs. CSC, supra).

The CSC cannot revoke the appointment on the ground that someone is better qualified for that would encroach on the discretion granted to the appointing authority (Aquino vs. CSC, supra).

Under the Administrative Code of 1987, all provincial and city prosecutors and their assistants shall be appointed by the President upon the recommendation of the Sec. of Justice. The phrase ―upon recommendation of the Sec. of Justice‖ should be interpreted to be a mere advise, exhortation and indorsement, which is essentially persuasive in character but is not binding or obligatory upon the person to whom it is made (Bermudez vs. Executive sec., GR No. 131429, Aug. 4, 1999). JUDICIAL REVIEW OF APPOINTMENTS An appointment is generally a political question so long as the appointee fulfills the minimum qualification requirements prescribed by law. Where the validity of the appointment is not challenged in appropriate proceedings, the question of the competence of the public officer is beyond the pale judicial inquiry (Tañada vs. Philippine Atomic Energy Commission). DE FACTO OFFICERS One who has the reputation of being the officer that he assumes to be, and yet is not good officer in point of law. He must have acted as an officer for

such length of time, under color of title and under such circumstances of reputation or acquiescence of the public and public authorities, as to afford a presumption of election or appointment, and induce people, without inquiry, and relying on the supposition that he is the officer he assumes to be. Legal Effects of Acts: The lawful acts of a de facto officer, in so far as the rights of third person are concerned are, if done within the scope and by the apparent authority of the office, considered valid and binding as if he were the officer legally elected and qualified for the office and in full possession thereof (Cruz, 2007). Rationale: The doctrine is intended not for the protection of the public officer, but for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of a public office (Monroy vs. CA, 20 SCRA 620). Requisites/Elements:

1. A validly existing public office; 2. Actual physical possession of said office; 3. Color of title to the office.

There is color of title to the office under any of the following cases –

a) By reputation or acquiescence. b) Under a known and valid appointment or

election, but the officer failed to conform to a requirement imposed by law – like the taking of an oath of office.

c) Under a known appointment or election, void because of the ineligibility of the officer, or want of authority of the appointing officer or electing authority, or because of an irregularity in his appointment or election, and such causes being unknown to the public.

d) Under a known appointment or election pursuant to an unconstitutional law before the law is declared unconstitutional.

MODE OF ATTACKING TITLE TO OFFICE De facto officer’s title to office is not subject to collateral attack, but only through a direct attack by way of a Petition for Quo Warranto. ENTITLEMENT TO SALARY GR: The rightful incumbent may recover from an officer de facto the salary received by the latter during the time of his wrongful tenure, even though he entered into office in good faith an under color of title (Monroy vs. CA, supra). The SC ordered petitioner Anino to pay respondent backpay differentials pertaining to the period from the time Anino wrongfully assumed the contested position of Manager II up to his retirement (General


Manager, PPA, vs. Monserate, GR No. 129916, April 17, 2002) Exception: However, where there is no de jure public officer, the officer de facto who in good faith has had the possession of the office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of the office, and may, in appropriate action, recover the salary, fees and other compensations attached to the office. Under the principle of public policy on which the de facto doctrine is based, and on basic considerations of justice, it would be iniquitous to deny him the salary due him for the services he actually rendered. Thus, even assuming that the President has no authority to appoint petitioner as acting governor, the petitioner is at least a de facto officer entitled to compensation (Menzon vs. Petilla, 197 SCRA 251).

De Facto Officer Intruder [Usurper]

Officer under any of the

4 circumstances mentioned

One who takes possession of an office and undertakes to act officially without any

authority, either actual or apparent

Has color of right to

office

Has neither lawful title nor color of right or title

to office

Acts are valid to the public until such time as his title to the office is adjudged insufficient

Acts are absolutely void and can be impeached

in any proceeding at any time unless and until he continues to act for so

long a time as t afford a presumption of his right

to act

Ma be entitled to compensation for services rendered

Not entitled to compensation

JURISDICTION OF THE CIVIL SERVICE COMMISSION 1) Disciplinary cases; 2) Cases involving personnel action affecting

employees in the Civil Service, including – i. Appointment through certification; ii. Promotion; iii. Transfer; iv. Reinstatement; v. Reemployment; vi. detail; vii. reassignment; viii. demotion; ix. Separation.

3) Authority to recall an appointment which has been initially approved when it is shown that the same was issued in disregard of pertinent laws, rules and regulations.

Note: But the CSC is not a co-manager, or surrogate administrator of government offices and agencies. Its functions and authority are limited to approving or reviewing appointments to determine their compliance with CS Law. On its own, the CSC does not have the power to terminate employment or to drop members from the rolls (UP and Alfredo Torres vs. CSC, GR No. 132860, April 3, 2001). SCOPE OF THE CIVIL SERVICE: see sec. 2 [1], Art. IX-B. Merit System Protection Board CSC Resolution No. 93-2387 dated June 29, 1993 provides that decisions in administrative cases involving officials and employees of the civil service which are appealable to the Commission, including personnel actions such as contested appointments shall now be appealed directly to the Commission and not to MSPB. The functions of the MSPB relating to the determination of administrative disciplinary cases were, in other words, re-allocated to the Commission itself. These changes were prescribed by the Commission in its effort to streamline the operation of the CSC which in turn required the simplification of systems, cutting of red tape and elimination of [and] unnecessary bureaucratic layer (Rubenecia vs. CSC, GR No. 115942, May 31, 1995). CLASSES OF SERVICE A. Career Service – Characterized by entrance

based on merit and fitness to be determined, as far as practicable by competitive examinations, or based on highly technical qualifications, opportunity for advancement to higher career positions, and security of tenure. i. open career positions, where prior

qualification in an appropriate examination is required;

ii. closed career position – scientific or highly technical in nature;

iii. Career Executive Service – undersecretaries, bureau directors, where the appointee is required to possess appropriate CESO eligibility;

iv. Career officers (other than those belong to CES0 who are appointed by the President;

v. Positions in the AFP, although governed by a different merit system;

vi. Personnel of GOCCs with original charters; vii. Permanent laborers, whether skilled, semi-

skilled or unskilled.


B. Non-Career Service – see discussions in separate topic under CSC.

Kinds of Co-Terminous Employment (Orcullo vs. CSC, GR No. 138780, May 22, 2001).

a) Co-terminous with the project; b) Co-terminous with the appointing authority; c) Co-terminous with the incumbent; d) Co-terminous with a specific period.

POWERS AND DUTIES OF PUBLIC OFFICERS

…………………………………………

The authority of public officers consists of those powers which are – a) Expressly conferred upon him by the act

appointing him; b) Expressly annexed to the office by law; c) Attached to the office by common law as

incidents to it; Doctrine of Necessary Implication: All the powers necessary for the effective exercise of the express powers are deemed impliedly granted.

When Authority Be Exercised: The authority can be exercised only during the term when the public officer, is by law, invested with the rights and duties of the office. Thus, where a decision is penned by the judge after he had retired, the SC said that the decision had no binding effect (Jandaya vs. Ruiz, 95 SCRA 562). The decision promulgated by a division of the CA was ruled to be null and void, considering that it was promulgated after the justices had been notified of the acceptance of their resignation (Lao vs. Chip, 158 SCRA 243). It was held that although the effectivity of Judge de Guzman’s disability retirement was made retroactive to Feb. 16, 1996, it cannot be denied that at the time the subject decision was promulgated on Feb. 22, 1996, he was still the incumbent judge until his application for retirement was approved in June 1996 (P. vs. Garcia, GR No. 126252, Aug. 30, 1999). MINISTERIAL POWERS One the discharge of which by the officer concerned is imperative and requires neither judgment nor discretion (Lamb vs. Phipps, 22 Phil. 456). The exercise of ministerial powers may be compelled by writ of mandamus.

DISCRETIONARY POWERS One imposed by law upon a public officer wherein the officer has the right to decide how and when the duty shall be performed (Ibid). As a rule, mandamus will not lie to compel performance of a discretionary power. However, the writ may issue to compel the exercise of the discretion, not the discretion itself [meaning to decide in either way] (Sharp International Marketing vs. CA, 201 SCRA 299).

However, where there is grave abuse of discretion, manifest injustice or palpable excess of authority equivalent to a denial of a settled right, and there is no other plain, speedy and adequate remedy, the writ of mandamus will issue (First Philippine Holdings Corp. vs. Sandiganbayan, 253 SCRA 30).

Judgment vis-a-vis Discretion: Judgment is a judicial function, the determination of a question of law. There is only one way to be right. Discretion is the faculty conferred upon a court or other officer by which he may decide the question either way and still be right. Note: Discretion, however, is limited to evident purpose of the act; sound and legal discretion; not arbitrary, capricious or oppressive proceedings. GENERAL [CONSTITUTIONAL] DUTIES OF PUBLIC OFFICERS 1. To be accountable to the people; to serve them

with utmost responsibility, integrity, loyalty and efficiency; to act with patriotism and justice; and to lead modest lives (sec. 1, Art. XI);

2. To submit SALN (sec. 17, Art. XI); 3. To owe the State and the Constitution allegiance

at all times (sec. 18, Art. XI); PROHIBITIONS: 1. Partisan political activities – see sec. 2 [4], Art.

IX-B, and annotations thereon; 2. Additional double compensation – see sec. 8,

Art. IX-B, and annotations; 3. Prohibition against the grant of loans to certain

public officials – see sec. 16, Art. XI; 4. Limitation on laborers – shall not be assigned to

perform clerical duties; 5. Detail or reassignment – No detail or

reassignment shall be made within 3 months before any election without the approval of the COMELEC.

6. Nepotism. All appointments 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 prohibited.


The prohibition covers all appointments,

including designations, in the national, city and municipal governments, or in any branch or instrumentality thereof, including GOCCs with original charters (Laurel vs. CSC, 203 SCRA 195).

The original, and all subsequent personnel actions, such as promotion, transfer, reinstatement, etc., must conform with the rule against nepotism; otherwise, the prohibition would be rendered ―meaningless and toothless‖ (Debulgado vs. CSC, supra).

―Relative‖ - means related within the 3rd

degree by consanguinity or affinity.

Nepotism under the Local

Government Code Section 79,

LGC. Limitation to Appointments. -

No person shall be appointed in the

career service of the local

government if he is related within

the fourth civil degree of

consanguinity or affinity to the

appointing or recommending

authority.

Exemptions: a) Persons employed in confidential

capacity; b) Teachers; c) Physicians; d) Members of the AFP

Provided; that in each particular instance, a full report of such appointment shall be made to the CSC.

The respondent Vocational School Administrator of Balicuatro College of Arts and Trades was found guilty of nepotism because although he did not appoint or recommend his two sons to the positions of driver and utility worker of the school, ―the unseen but obvious hand of the respondent‖ was behind the appointment. [in this case, the respondent exercises immediate supervision over his two sons] (CSC vs. Dacoycoy, GR No. 135805, April 29, 1999).

RIGHTS OF PUBLIC OFFICERS

…………………………………………………

A. Right to Office – The just and legal claim to

exercise the powers and the responsibilities of the public office.

Tenure Term

The period during which the officer

actually holds office

The period during which the officer may claim to hold the office

as of right

B. Right to Salary – is the personal compensation

to be paid to the public officer for his services, and is generally a fixed annual or periodical payment depending of the time and not on the amount of the services he may render.

Salary Wages

Given to officers of higher degree of

employment

Given to those employed in lower

classes of employment

Salary is regarded as compensation per

annum

Wages are paid day by day or week by week

Basis: The legal title to office and the fact that the law attaches compensation to the office. The petitioner, a Supply Officer II who was designated by the provincial governor as Assistant Provincial Treasurer for Administration, was declared not entitled to claim the difference between the salary and representation allowance the two positions, because the Provincial Governor was without authority to designate petitioner, the power being vested in the Sec. of Finance under the LGC. Because petitioner’s designation was without color of authority, the right to salary or to an allowance due from such office never existed (Dimaandal vs. COA, 291 SCRA 322).

However, where there is no de jure officer, a de facto officer, who in good faith, has possession of the office and discharged the duties thereof, is entitled to salary (Menzon vs. Petilla, supra).

Exemption from Garnishment: The salary of a public officer cannot, by garnishment, or order of execution be seized before being paid to him, and appropriated to the payment of his debts. Public policy also prohibits the assignment of unearned salaries or fees. Agreements affecting compensation are void as contrary to public policy. Note: Compensation is not indispensable to a public office. It is not part of the office but merely an incident thereto. SOME CONSTITUTIONAL PROVISIONS AFFECTING SALARIES: 1. No increase in the salaries of members of

Congress until after the expiration of the full term of the Members of the Senate and the House of


Representatives who approved the increase (sec. 10, Art. VI);

2. Salaries of the President and Vice-President shall be fixed by law and shall not be decreased during their tenure. No increase shall take effect until after the expiration of the term of the incumbent during which such increase was approved (sec. 6, Art. VII);

3. The salary of the members of the Judiciary shall not be decreased during their continuance in office (sec. 10, Art. VIII);

4. Additional, double or indirect compensation are prohibited, unless specifically authorized by law (sec. 8, Art. IX-B);

An ex officio position being actually in legal contemplation part of the principal office, it follows that the official concerned has no right to receive additional compensation for his services in said position (Cruz, 2007).

5. Standardization of compensation (sec. 5, Art. IX-B;

6. Separation pay to be given to career civil service employees who are separated from the service not for cause but by reason of reorganization (sec. 16, Art. XVIII).

Two Kinds of Preventive Suspension in Relation to the Right to Salary: a) Preventive suspension pending investigation.

Not entitled to salary, even if he is exonerated, because in order to be entitled to payment of back salaries, it is not enough that an employee be exonerated, in addition, it must be shown that his suspension is unjustified. But under the CSL, preventive suspension of civil service employees charged with dishonesty, oppression, grave misconduct or neglect of duty, is authorized. Thus, even if the charges are dismissed later, the suspension is not unjustified (sec. 51, Book V, Title I, Subtitle A, Administrative Code of 1987).

b) Preventive suspension pending appeal. When

the penalty imposed by the disciplining authority is suspension, or dismissal, and after review, the respondent is exonerated, he is entitled not only to reinstatement but also to back salaries for the period of preventive suspension pending appeal [sec 47, Ibid.] (Gloria vs. CA, supra).

Note: Under existing jurisprudence, such award should not exceed the equivalent of 5 years pay at the rate last received before the suspension was imposed. On the other hand, if the conviction is affirmed, the period of suspension becomes part of the final penalty of suspension or dismissal (Nachura, p. 479).

Right to Back-salaries of Illegally Dismissed Employee: An illegally dismissed employee in government service who is later ordered reinstated is entitled to back wages and other monetary benefits from the time of his illegal dismissal up to his reinstatement. The policy of ―no work, no pay‖ cannot be applied, for such distressing state of affairs was not of her own making. To permit otherwise is to put naught the constitutional guarantee of security of tenure (Constantino-David vs. Pangandaman-Gania, GR No. 156039, Aug. 14, 2003). However, where the reinstatement was not the result of exoneration but an act of liberality of the CA, the claim for backwages for the period during which the employee was not allowed to work MUST be denied (Balitaosan vs. Sec. of DECS, GR No. 138238, Sept. 2, 2003). The claim for back salaries must be cupled with a claim for reinstatement and subject to the prescriptive period of 1 year (Cruz, 2007). Thus, to be entitled to back salaries, two conditions must be complied with –

i. The employee must be found innocent of the charges; and

ii. His suspension must be unjustified. The period of preventive suspension

pending investigation is not unjustified, the respondent is not entitled to back salaries (CSC vs. Cruz, GR no. 187858, Aug. 9, 2011).

Right to Additional Allowance Under the LGC, LGUs may provide for additional allowances and other benefits to national government officials stationed or assigned to their municipality or city. This is, however, not absolute. Thus, the grant of financial assistance to its Auditing Office is in excess of its powers because it runs counter to RA 6758. COA officials may be treated differently from other national officials. For one, they should be ―insulated for unwarranted influences so they can act with independence and integrity.‖ C. Right to Preference in Promotion – see Luego

vs. CSC, supra.

D. Right to Vacation and Sick Leave - Government employees, whether or not they have accumulated leave credits, are not required by law to work on Saturdays, Sundays and holidays, and thus, cannot be declared absent on such non-working days (Peralta vs. CSC, 212 SCRA 425).


Note: Under Office of the President Memo Circular No. 54, dated March 24, 1988, government officers and employees are now entitled to commutation of all leave credits without limitation and regardless of the period when the credits were earned, provided the claimant was in the service as of Jan. 9, 1986). Under sec. 81, LGC, elective local officials shall be entitled to the same leave privileges as those enjoyed by the appointive local officials and the accumulation and commutation thereof.

E. Right to Maternity Leave –

F. Right to Retirement Pay – given to government employees to reward them for giving the best years of their lives in the service of their country (GSIS vs. CSC, GR No. 102449, June 19, 1995). Retirement laws are liberally construed in favor of the retiree (Profeta vs. Drilon, 216 SCRA 777). Thus, the period when the respondent was paid on a per diem basis was creditable for purposes of retirement; it being clear that the per diem received was paid for performance of services and not for allowance for expenses incurred while the respondent was away from home base (GSIS vs. CSC, 245 SCRA 179). The well-settled rule is that money value of the terminal leave of a retiring government official shall be computed at the retiree’s highest monthly salary. Thus, the petitioner’s highest monthly salary, for purposes of computing his terminal leave pay, should be that corresponding to the salary of the Sec. of Finance which he received as acting Sec. of Finance (Belicena vs. Secretary of Finance, GR No. 143190, Oct. 17, 2001). Retirement pay accruing to a public officer may not b withheld and applied to his indebtedness to the government (Tantuico vs. Domingo, GR No. 96422, Feb. 28, 1994).

G. Right to Self-Organization – right to form unions, associations, societies for purposes not contrary to law (Art. III, sec. 8, of the Constitution). The right to self-organization accorded to

government employees shall not carry with it the right to engage in any form of prohibited concerted activity of mass action causing or intending to cause work stoppage or service

disruption, albeit of temporary nature (sec. 4, CSC Resolution No. 021316, 2002).

See complete discussion in the Labor Code Reviewer.

OTHER RIGHTS 1) Right to reimbursement for expenses incurred in

the performance of his duty. 2) Right to be indemnified against any liability

which they may incur in the bona fide discharge of their duties.

3) Right to longevity pay.

PERSONNEL ACTIONS

…………………………………………………

1. Promotion – is a movement from one position

to another with increase in duties and responsibilities as authorized by law and usually accompanied by an increase in pay. Next-in-rank rule: The person next in rank shall be given preference in promotion when the position immediately above his is vacated. However, one who is next-in-rank is given only preferential consideration for promotion; but it does no necessarily follow that he alone and no one else can be appointed (Panis vs. CSC, GR No. 102948, Feb. 2, 1994). Automatic Reversion Rule: under sec. 13, of the Omnibus Rules Implementing Book V, EO No. 292, ―all appointments involved in a chain of promotions must be submitted simultaneously for approval by the CSC. The disapproval of the appointment of a person proposed to a higher position invalidates the promotion of those in lower positions and automatically restores them to their former positions. Requisites:

i. There must be series of promotions; ii. All promotional appointments are

simultaneously submitted to the Commission for approval; and

iii. The Commission disapproves the appointment of a person to a higher position (Divinagracia vs. Sto. Tomas, GR No. 110954, May 31, 1995).

2. Appointment through certification – is issued

to a person who has been selected from a list of qualified persons certified by the CSC from an


appropriate register of eligibles, and who meets all the qualifications prescribed for the position.

3. Transfer – is a movement from one position to another which is of equivalent rank, level or salary without break of service. Under current Civil Service rules and regulations, transfer, may be imposed as an administrative penalty.

An unconsented transfer violates security of tenure (Palma-Fernandez vs. de la Paz, 160 SCRA 751).

While a temporary transfer or assignment of personnel is permissible even without the employee’s prior consent, it cannot be done when the transfer is a preliminary step toward his removal, or scheme to lure him away from his permanent position, or when it is designed to indirectly terminate his service, or force his resignation. Such a transfer would in effect circumvent the provision which safeguards the tenure of office of those who are in the Civil Service (Republic vs. Pacheco, GR no. 178021, Jan. 31, 2012).

4. Reinstatement – any person who has been

permanently appointed to a position in the career service and who has, though no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified. Reinstatement is technically the issuance of a new appointment, which is essentially discretionary; such exercise cannot be controlled by the courts, as long as it is properly exercised by the appointing authority (Gloria vs. Judge de Guzman, supra). One who, because of conviction of a crime, has forfeited her right to the public office but was extended a plenary pardon by the President, cannot, as a matter of right, demand reinstatement by reason of such pardon (Monsanto vs. Factoran, 170 SCRA 190). However, when the person is granted pardon because he did not truly commit the offense, the pardon relieves him from all punitive consequences of his criminal act, thereby restoring him his clean name, good reputation and unstained character prior to his conviction. The bestowal of executive clemency in effect completely obliterated the adverse effects of the administrative decision which found him guilty of dishonesty and ordered his separation from the service. The petitioner need no longer apply for reinstatement, he is restored to his office ipso

facto upon the issuance of the clemency, and he is entitled to backwages (Garcia vs. Chairman, COA, GR No. L-75025, Sept. 14, 1993).

5. Detail – is the movement of an employee from one agency to another without the issuance of an appointment, and shall be allowed only for a limited period in the case of employees occupying professional, technical and scientific positions. It is temporary in nature (Republic vs. CA, 182 SCRA 721).

6. Reassignment – an employee may be reassigned from one organizational unit to another in the same agency, provided that such reassignment shall not involve a reduction in rank, status or salary.

Reassignment is recognized as a management prerogative vested in the CSC and, for that matter, in any department or agency embraced in the Civil Service; it does not constitute removal without cause. But like detail, reassignment should have a definite date or duration. The lack of specific duration of the reassignment was tantamount to a floating assignment, thus, a diminution in status and rank (Padolina vs. Fernandez, GR No. 133511, Oct. 10, 2000).

7. Demotion – movement from one position to another which involves diminution in duties, responsibilities, status or rank which may or may not involve reduction in salary.

8. Secondment – movement of an employee from one department or agency to another which is temporary in nature in nature and which may or may not require the issuance of an appointment but may either involve reduction or increase in compensation (sec. 6[c], Rule III, CSC Memo. Circular No. 15, series of 1999).

9. Disciplinary Actions – for violation of public trust, and failure to serve with utmost responsibility, integrity, loyalty and efficiency and act with patriotism and justice and leading of modest lives.

Grounds:

1) dishonesty; 2) oppression; 3) neglect of duty; 4) misconduct; 5) disgraceful and immoral conduct; 6) being notoriously undesirable; 7) inefficiency and incompetence;


8) conviction of a crime involving moral turpitude;

9) falsification of official documents; 10) habitual drunkenness; 11) gambling; 12) refusal to perform official duty or perform

overtime services; 13) physical or mental incapacity due to immoral

or vicious habits; 14) willful refusal to pay just debts; or 15) willful failure to pay taxes due to the

government.

Some cases on grounds for disciplinary action:

Dishonesty is the concealment or distortion of truth in a matter of fact relevant to one’s office or connected with the performance of his duty. It is a serious offense which reflects in the person’s character and exposes the moral decay which virtually destroys his honor, value and integrity.

The use of fake or spurious civil service eligibility is regarded as dishonesty and grave misconduct, punishable by dismissal from the service (CSC vs. Cayobit, GR No. 145737, Sept. 3, 2003).

Conduct prejudicial to the best interest of the service is classified as a grave offense, and the penalty for a second offense is dismissal from service (Cabano vs. Monreal, 218 SCRA 558). Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior as well as gross negligence by the public officer. The word misconduct implies a wrongful intention, and not a mere error of judgment.

Concealment, in the Personal Data Sheet, of an official or employee, of a previous charge, albeit dismissed, constitutes a mental dishonesty amounting to misconduct and warrants a penalty for the erring official (Advincula vs. Dicen, GR No. 162403, May 16, 2005).

Inefficiency and incompetence are grounds, among others, for the removal of a public officer or employee. But incompetence ant inefficiency can only be determined after the passage of sufficient time, hence probationary period of six months for the respondents. It is quite improbable that mayor Miranda could finally determine the performance of the respondents for only 3 months of the probationary period. This condition is not observed in this case (Miranda vs. Carreon, GR No. 143540, April 11, 2003).

Procedure in Disciplinary Cases Read sec. 38 PD 807, and sec. 48, Chapter 3, Book V, Administrative Code of 1987. An administrative case against public officials

shall [or may], continue despite the withdrawal by the complainant (Baroy vs. Peralta, 287 SCRA 1).

Disciplinary actions against public officials do not involve purely private matters; they are impressed with public interest by virtue of public character of the public office. The affidavit of desistance of the complainant should therefore be disregarded (Sandoval vs. Manalo, 260 SCRA 611).

Proof Required: Substantial evidence. The standard is satisfied when the employer has reasonable ground to believe that the employee is responsible for the misconduct and his participation therein renders him unworthy of trust and confidence demanded by his position (Casimiro vs. Tandog, GR No. 146137, June 8, 2005).

Jurisdiction in Disciplinary Cases 1) Heads of ministries, agencies and

instrumentalities, provinces, cities and municipalities have jurisdiction to investigate and decide matter involving disciplinary action against officers and employees under their jurisdiction. Their decision shall be final in case the penalty imposed is suspension of not more than 30 days or a fine in an amount not exceeding 30 days salary. In other cases, the decision shall be initially appealed to the department head and finally to the CSC and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the department head (se. 37, PD 807).

However, under sec. 9, RA 4670 [Magna Carta for Public School Teachers] the Committee to hear administrative charges against public school teachers must include a representative of teachers’ organization. This is to ensure an impartial tribunal (Fabella vs. CA, GR No. 110379, Nov. 28, 1997). 2) The CSC has appellate jurisdiction, but a

complaint may be filed directly with the Commission, and the latter may hear and decide the case, or deputize a department or agency to conduct the investigation.


Preventive Suspension It is a disciplinary measure which is intended to enable the disciplinary authority to investigate charges against the respondent by preventing the latter from using his position or office to influence witnesses, to intimidate them, or to tamper with the records which may be vital in the prosecution of the case against him.

Preventive suspension may be imposed without any notice and hearing since it is not a penalty. It is merely a preliminary step in an administrative investigation and is not the final determination of the guilt of the officer concerned (Garcia vs. Mojica, GR No. 139043, Sept. 10, 1999).

Power of Removal includes the Power to Suspend The authority to preventively suspend is included in the greater of power of removal. Thus, where a court [or tribunal] is granted the power to perpetually disqualify a public officer from public office, the court may properly order preventive suspension, although the law does not specifically authorizes such (Socrates vs. Sandiganbayan, GR No. 116259-60, Feb. 20, 1996). Who may be Suspended The provision of suspension pendente lite applies to all whether they be appointive or elective officials; or permanent or temporary employees, or pertaining to the career or non-career service (Berona vs. Sandiganbayan, GR No. 142456, July 27, 2004). Preventive suspension: Kinds – a) Preventive suspension pending investigation.

Requisites of Suspension pending investigation:

i. The charge involves dishonesty, oppression, or grave misconduct, or neglect in the performance of duty;

ii. There is reason to believe that the respondent is guilty of charges which would warrant his removal.

If the investigation is not finished and a

decision is not rendered within a period of 90 days, the suspension will be lifted and the respondent will automatically be reinstated.

b) Preventive suspension pending appeal.

Authority to preventively suspend is exercised concurrently with the Ombudsman, pursuant to RA 6770; the same authorizes preventive suspension of 6 months.

For police officers, preventive suspension may be indefinite and may last until the termination of the case (Himagan vs. P., GR No. 113811, Oct. 7, 2011).

Suspension Pending Investigation

Suspension Pending Appeal

Not a penalty but only a means of enabling the disciplining authority to conduct an investigation

Punitive in character

No back salaries due for the period of suspension even if found innocent of the charges

If exonerated, he should be reinstated with full back salaries for the period of suspension pending appeal. If his sentence is commuted [in other words not found to be innocent], he cannot claim back salaries

APPEAL: When allowable, shall be made within 15 days from receipt of the decision, unless a petition for reconsideration is seasonably filed, which petition shall be decided within 15 days. Grounds for Motion for Reconsideration:

i. New evidence has been discovered which materially affects the decision rendered;

ii. The decision is not supported by the evidence on record;

iii. Errors of law or irregularities have been committed which are prejudicial to the interest of the respondent.

Summary Dismissal: The provisions on summary dismissal under the Administrative Code of 1987, have already been repealed by RA 6654 (Abalos vs. CSC, 196 SCRA 81). Removal of Administrative Penalties or Disabilities: In meritorious cases and upon recommendation of the CSC, the President may commute or remove administrative penalties or disabilities imposed upon officers or employees in disciplinary cases, subject to such terms and conditions as he may impose in the interest of the service (Garcia vs. Chairman, COA, GR No. L-75025, Sept. 14, 1993). Note: For preventive suspension of local elective officials, see art. 63 to 68, LGC in the topic Public Corporations.


LIABILITY OF PUBLIC OFFICERS

...........................................................

GR: A public officer is not liable for injuries sustained by another as a consequence of official acts done within the scope of his official authority, except as otherwise provided by law. Exception: unless there is a clear showing of bad faith, malice or negligence [sec. 38 (1), Chapter 9, Book 1, Administrative Code of 1987].

No subordinate officer or employee shall be civilly liable for act done by him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him which are contrary to law, morals, public policy and good customs even if he acted under orders or instructions of his superiors (sec. 39, Chapter 9, Book I, Administrative Code of 1987).

Local governments and their officials are not

exempt from liability for death or injury to persons or damage to property (sec. 24, RA 7160).

STATUTORY LIABILITY OF PUBLIC OFFICERS a) Art. 27, NCC;

Art. 27. Any person suffering material or moral loss because a public servant or employee refuses or neglects, without just cause, to perform his official duty may file an action for damages and other relief against the latter, without prejudice to any disciplinary administrative action that may be taken.

b) Art. 32, NCC; Liability of public officers for

violation of constitutional rights of individuals. For judges, the act complained of must itself constitute a crime.

An individual can hold public officer personally liable for damages on account of an act or omission that violates a constitutional right if it results in a particular wrong or injury to the former. The presence of bad faith is not necessary (Vinzons-Chato vs. Fortune Tobacco Corp., GR No. 141309, Dec. 23, 2008).

c) Art. 34, NCC;

Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in

case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.

d) Sec. 38 [20], Chapter 9, Book I, Administrative

Code. Any public officer who, without just cause, neglects to perform a duty within a period fixed by law or regulation, or within a reasonable period in none is fixed, shall be liable for damages to the private party concerned without prejudice to such other liability as may be prescribed by law.

Liability on Contracts: The public officer shall be personally liable on contracts he enters into if he acted without, or exceeded his authority. Liability for Tort: The public officer shall be personally liable if he goes beyond the scope of his authority, or exceeds the powers conferred upon him by law. The mayor who illegally dismissed employees was held personally liable, even if at the time of execution of judgment, he was no longer the mayor (Correa vs. CFI of Bulacan, 92 SCRA 312). THREEFOLD LIABILITY RULE The wrongful acts or omissions of a public officer may give rise to civil, criminal and administrative liability. An action for each can proceed independently of the others. Dismissal of the criminal action does not foreclose the institution of an administrative action (OCA vs. Enriquez, 218 SCRA 1). Rationale: there is difference in the quantum of evidence required; in criminal cases, conviction requires proof beyond reasonable doubt, while administrative cases require only substantial evidence. Effect of Re-election: It operates as a condonation of the officer’s previous misconduct. However, re-election of a public official extinguishes only the administrative liability, but NOT the criminal liability incurred by him during his previous term of office (Conducto vs. Monzon, AM No. MTJ-98-1147. July 2, 1998)


Liability of Ministerial Officers: 1. Nonfeasance – Neglect or refusal to perform an

act which is the officer’s legal obligation to perform.

2. Misfeasance – failure to use that degree of care, skill and diligence required in the performance of official duty.

3. Malfeasance – the doing, though ignorance, inattention or malice, of an act which he had no legal right to perform.

COMMAND RESPONSIBILITY A head of a department or a superior officer shall not be civilly liable for the wrongful acts or omissions of duty, negligence or misfeasance of his subordinates, unless he has actually authorized by written order the specific act or misconduct complained of (sec. 38 [3], Chapter 9, Book I, Administrative Code of 1987). A superior officer is liable for acts of a subordinate when –

a. He negligently or willfully employs or retains unfit or incompetent subordinates;

b. He negligently or willfully fails to require subordinate to conform to prescribed regulations;

c. He negligently or carelessly oversees the business of the office as to furnish subordinate and opportunity for default;

d. He directed or authorized or cooperated in the wrong; or

e. The law expressly made him liable. Non-applicability of the Doctrine of Command Responsibility and the Principle of Respondeat Superior to public officers: Neither the principle of command responsibility [in military or police dynamics], nor the doctrine of respondeat superior [in quasi-delicts] applies in the law of public officers. The negligence of the subordinate cannot be ascribed to his superior in the absence of evidence of the latter’s own negligence (Reyes vs. Rural Bank of San Migues Inc., GR No. 154499, Feb. 27, 2004). But, the President, being the commander-in-chief of all the armed forces, necessarily possesses control over the military that qualifies him as a superior within the purview of the command responsibility doctrine (In the Matter of the Petition for the Writ of Amparo and Habeas Data in favor of Noriel Rodriguez vs. Arroyo, supra). Liability of Subordinate officers: Subordinate officers are also liable for willful or negligent acts even if he acted under orders if such acts are contrary to law, morals, public policy and

good customs (sec. 39, Chapter 9, Book I, Administrative Code of 1987).

TERMINATION OF OFFICIAL RELATIONSHIP

………………………………………… Modes of Terminating Official Relationship: 1. Expiration of the term or tenure. 2. Reaching the age limit. 3. Resignation. 4. Recall. 5. Removal. 6. Abandonment. 7. Acceptance of incompatible office. 8. Abolition of office. 9. Prescription to the right to office. 10. Impeachment. 11. Death. 12. Failure to assume elective office within 6 months

from proclamation. 13. Conviction of a crime. 14. Filing of COC of appointive public officials. 15. Accomplishment of the Purpose. 1. Expiration of Term or Tenure When a public officer holds office at the pleasure of the appointing authority, his being replaced shall be regarded as termination through expiration of term, not removal (Astraquillo vs. Manglapus, 190 SCRA 280). The Principle of Hold-Over: In the absence of any express or implied constitutional or statutory provision to the contrary, the public officer is entitled to hold his office until his successor shall have been duly chosen and qualified. The legislative intent of not allowing hold-over must be clearly expressed or at least implied in the legislative enactment, otherwise, it is reasonable to assume that the law-making body favors the same (Lecaroz vs. Sandiganbayan, GR No. 130872, march 25, 1999). Purpose: Prevent hiatus in public service.

Art. 237, RPC penalizes any public officer who

shall continue to exercise the duties and powers of his office beyond the period provided by law.

During this period of hold-over, the public officer is a de jure officer.

When the law fixes a specific date for the end of the term, there is an implied prohibition against hold-over. Since elective ARMM officials are local

officials, they are covered and bound by the

3-year term limit prescribed in the


Constitution. Congress cannot extend their

term through a law allowing officials to serve

in a hold-over capacity (Datu Michael Abas

Kida, vs. Senate, supra).

2. Reaching the Age Limit: Compulsory retirement age:

i. Members of the Judiciary – 70 years of age. ii. Other government officers/employees – 65

years of age. 3. Resignation: The act of giving up or the act of a public officer by which he declines his office and renounces the further right to use it. It is an expression of the incumbent is some form, express or implied, of the intention to surrender, renounce and relinquish the office and the acceptance thereof by competent authority. A resignation must be voluntary on the part of the public officer. When procured by fraud or by duress, the resignation may be repudiated. A ―courtesy resignation‖ lacks the element of voluntariness and is, therefore, not a valid resignation (Ortiz vs. COMELEC, 162 SCRA 212). Need for Acceptance: Resignation must be accepted by competent authority, either expressly or impliedly. Mere tender of resignation, without acceptance by competent authority does not create vacancy in public office (Joson vs. Nario, 187 SCRA 453). Acceptance of resignation is necessary because art. 238, RPC penalizes any public officer who, before the acceptance of his resignation, abandons his office to the detriment of the public service. If the public officer is mandated by law to hold-over, the resignation, even if accepted, will not be effective until after the appointment or election of his successor.

Pertinent Provision Under LGC –

Section 82, RA 7160. Resignation of

Elective Local Officials. -

(a) Resignations by elective local officials

shall be deemed effective only upon acceptance by the following authorities:

(1) The President, in the case of

governors, vice-governors, and

mayors and vice-mayors of highly

urbanized cities and independent component cities;

(2) The governor, in the case of

municipal mayors, municipal vice-

mayors, city mayors and city vice-mayors of component cities;

(3) The sanggunian concerned, in the case of sanggunian members; and

(4) The city or municipal mayor, in the case of barangay officials.

(b) Copies of the resignation letters of

elective local officials, together with the

action taken by the aforesaid authorities,

shall be furnished the Department of the Interior and Local Government.

(c) The resignation shall be deemed

accepted if not acted upon by the

authority concerned within fifteen (15) days from receipt thereof.

(d) Irrevocable resignations by

sanggunian members shall be deemed

accepted upon presentation before an

open session of the sanggunian concerned

and duly entered in its records: Provided,

however, That this subsection does not

apply to sanggunian members who are

subject to recall elections or to cases

where existing laws prescribed the

manner of acting upon such resignations.

The President and Vice-President tender their resignations with Congress.

Members of Congress: With their respective Houses.

If the law is silent on who shall accept the

resignation, the following rules shall apply: i. If the public officer resigning is an appointive

officer, then the tender shall be made with, and accepted by, the appointing authority;

ii. If an elective officer, then tender shall be made with, and accepted by, the officer/s authorized by law to call an election in order to fill the vacancy;

Effective Date of Resignation: The date specified in the tender; and if no such date is specified, then resignation shall be effective when the public officer receives notice of acceptance of his resignation, not the date of the letter or notice of acceptance (Gamboa vs. CA, 1981).


The rule is similar to cognition theory in perfection of contracts under the Civil Law.

Courtesy Resignation: Cannot properly be interpreted as a resignation in the legal sense for it is not necessarily a reflection of a public official’s intention to surrender his position. Rather, it manifests his submission to the will of the political authority and the appointing power (Ortiz vs. COMELEC, No. L-78957, June 28, 1988). 4. RECALL: The termination of official relationship of an elective official for loss of confidence prior to the expiration of his term through the will of the electorate.

See sec. 70 – 74, RA 7160, as amended by RA 9244.

Prohibition from resignation: The elective official sought to be recalled shall not be allowed to resign while the recall process is in progress. Limitations on Recall – 1) Any elective local official may be the subject of a

recall election only once during his term of office.

2) No recall shall take place within one year from the date of the official’s assumption to office or one year immediately preceding a regular local election.

SK election is not a regular election within the contemplation of the LGC as would bar the holding of a recall election (Paras vs. COMELEC, GR No. 123169, Nov. 4, 1996).

The ―regular local election‖ referred to in sec. 74, means the approaching local election where the position of the official is actually contested and to be filled by the electorate (Angobung vs. COMELEC).

Section 72, LGC. Effectivity of Recall. - The

recall of an elective local official shall be

effective only upon the election and

proclamation of a successor in the person of

the candidate receiving the highest number of

votes cast during the election on recall.

Should the official sought to be recalled

receive the highest number of votes,

confidence in him is thereby affirmed, and he shall continue in office.

5. REMOVAL: forcible and permanent separation of the incumbent from office before the expiration of his term. Grounds – 1) Sec. 36 (b) of Civil Service Law.

2) See also secs. 5 and 7, RA 6713. Note: Removal not for a just cause, or non-compliance with prescribed procedure constitutes reversible error, and entitles the officer or employee to reinstatement with back salaries and without loss of seniority rights (Cristobal vs. Melchor, No. l-43203, July 29, 1977).

Demotion is tantamount to unlawful removal if o cause is shown for it, or it is not part of any disciplinary action (Floreza vs. Ongpin, 182 SCRA 692).

Note: As a rule, unconsented transfer resulting in demotion in rank or salary is tantamount to removal without just cause (Palma-Fernandez vs. De la Paz, 160 SCRA 715). However, where the Court found that the private respondent failed to show patent illegality in the action of the BIR Commissioner, saying that to sustain private respondent’s contention that his transfer was a demotion simply because the new assignment is not to his liking would be to subordinate government projects, to individual preferences and opinions of civil service employees; and this would negate the principle that public office is a public trust (Chato vs. Natividad, GR No. 113843, June 2, 1995). 6. Abandonment The voluntary relinquishment of an officer by the holder thereof, with the intention of terminating his possession and control thereof.

Abandonment Resignation

A voluntary relinquishment through non-user or to neglect to use a privilege or a

right to an office.

A formal relinquishment, usually

with tender and acceptance by the

appropriate authority.

Abandonment may also result from

acquiescence by the officer in his wrongful removal or discharge. Where while desiring and intending to hold office, and with no intention or willful desire to abandon it, the public officer vacates it in deference to the requirements of a statute which is afterwards declared unconstitutional. Such surrender will not be deemed abandonment (Canonizado vs. Aguirre, GR No. 133132, Feb. 15, 2001).

Mere delay in qualifying for office is not abandonment.


When a judge refused to return to his office when required by the proper authorities because the salary of the Justice of Peace is not sufficient to sustain his family, he was deemed to have abandoned his office (Floresca vs. Quetulio, 82 Phil. 128).

Under Civil Service Rules, an officer or employee shall be automatically separated from the service if he fails to return to the service after the expiration of one year leave of absence without pay (Quezon vs. Boromeo, 149 SCRA 205).

The validity of sec. 35, Rule XVI of the Omnibus Rules of the Civil Service, which provides that officers and employees who are absent for at least 30 days without approved leave are considered on Absence Without Leave and shall be dropped from the service after due notice (Re: Absence Without Official Leave of Darlene Jacoba, AM No. 98-8-246-RTC, Feb. 15, 1999).

While the granting or approval of leaves of absence depends upon the needs of the service, and is therefor discretionary upon the head of the department, this discretion must be exercised properly. Thus, the unexplained inaction gave the respondent the impression that there was no impediment to his leave. Respondent therefore, cannot be considered AWOL for more than 30 days (PCA vs. Garrido, GR No. 135003, Jan. 21, 2002).

7. Acceptance of an Incompatible Office Test: By the nature and relation of the two offices to each other, they ought not to be held by one person from contrariety and antagonism which would result in the attempt by one person to faithfully and impartially discharge the duties of one, toward the incumbent of the other. Exception: Where the Constitution or law allows public officer to accept other office. 8. Abolition of Office Except when restrained by the Constitution, the Congress has the right to abolish an office, even during the term for which an existing incumbent have been elected. Constitutional offices cannot be abolished by

law.

No law shall be passed reorganizing the Judiciary when it undermines the security of tenure of its members.

It is within the legal competence of the city

council to create. Consolidate and reorganize

city offices and positions wholly supported by local funds (Mama, Jr. vs. CA, 196 SCRA 489).

The abolition must be made in good faith, with clear intent to do away with the office, not for personal or political reasons, and cannot be implemented in a manner contrary to law (Mendoza vs. Quisumbing, 186 SCRA 108).

Attrition – reduction of personnel as a result of resignation, retirement, dismissal, death or transfer to another office (RA 7430, Attrition law). REORGANIZATION The President has the continuing authority to reorganize the national government, which includes the power to group, consolidate bureaus and agencies, to abolish offices, to transfer functions, to create and classify functions, services and activities and to standardize salaries and materials. 9. Prescription of the Right to Office GR: The Rules of Court provide that a petition for reinstatement (after illegal ouster or dismissal), or the recovery of the public office, must be instituted within 1 year from the date the petitioner is unlawfully ousted from his office. Exception: On the ground of equity, when there are strong and compelling special circumstances, the court may entertain a petition for reinstatement filed beyond 1 year (Cristobal vs. Melchor, 13 SCRA 766). Rationale: Title to public office should not be subjected to continued uncertainty; and the people’s interest requires that such right should be determined as speedily as possible (Tumulak vs. Egay, 82 Phil. 828). The filing of an action for administrative remedy does not suspend the period for filing the appropriate quo warranto proceedings. The one year period runs even during the pendency of a motion for reconsideration (Morales vs. Patriarca, 13, SCRA 766). 10. Impeachment: see Accountability of Public Officers. 11. Death: the death of the incumbent necessarily renders the office vacant. 12. Failure to assume office: see sec. 11, BP 881. 13. Conviction of a crime: When the penalty imposed upon conviction, carries with it the accessory penalty of disqualification, conviction by final judgment automatically terminates official relationship.


14. Filing of COC:

Sec. 66 of BP 881 provides: ―Any person holding a public appointive office or position, including active members of the AFP, and officers an employees in government-owned or controlled corporations, shall be considered ipso facto resigned from his office upon the filing of the certificate of candidacy.‖

This provision even applies to officers and employees in GOCCs without original charters (PNOC vs. NLRC, GR No. 100947, May 31, 1993). 15. Accomplishment of the Purpose Where an office is created, or an officer is appointed, for the purpose of performing a single act or the accomplishment of a given result, the office terminates and the officer’s authority ceases with the accomplishment of the purposes which called it into being.


ELECTION LAWS

GENERAL PRINCIPLES

…………………………………………………

Suffrage: The right to vote in the election of officers chosen by the people and in the determination of questions submitted to the people which includes election, plebiscite, initiative and referendum. Basis of Suffrage: The people who bear the burden of government should share in the privilege of choosing the officials of the government. Main Objective of Suffrage: The continuity of government and the preservation and perpetuation of its benefits. This object is two-fold –

i. To enable the people to choose their representatives, through election; and

ii. To determine their will on questions submitted to them, through plebiscite, referendum, imitative and recall.

Theory of Popular Sovereignty A democratic and republican government derives all its power, directly or indirectly, from the people at large. Election: The means by which the people choose their officials for a definite and fixed period and to whom they entrust for the time being the exercise of the powers of government.

a. Regular election – one provided by law for the election of officers either nation-wide or in certain subdivisions thereof, after the expiration of the full term of the former officers.

b. Special election - one held to fill a vacancy on office before the expiration of the full term for which the incumbent was elected.

THEORIES ON SUFFRAGE a. Natural right theory – Suffrage is a natural and

inherent right of every citizen who is not disqualified by reason of his reprehensible conduct or unfitness.

b. Social expediency theory – Suffrage is a public office or function conferred upon the citizen for reasons of social expediency; conferred upon those who are fit and capable of discharging it.

c. Feudal theory – it is adjunct of a particular status, generally tenurial in character.

d. Tribal theory – it is a necessary attribute of membership in the State.

e. Ethical theory – it is a necessary and essential means for the development of society.

Types of Suffrage: 1. Referendum; 2. Initiative; 3. Plebiscite; 4. Recall; 5. Election. Theory Prevailing in the Philippines: Under the OEC [BP 881], it is both a privilege and an obligation. However, under the 1987 Constitution, it is a privilege that may [or may not] be exercised by citizens not disqualified under the law. Thus, it is now a right that is merely permissive and not obligatory. The qualified citizen may choose to waive the right. System of Election Adopted: The Australian system, conceived by Francis Dutton, the distinguishing character of which is the secrecy of the ballots. Constitutional Mandate on Congress:

i. Section 2, Art. V. The Congress shall

provide a system for securing the secrecy

and sanctity of the ballot as well as a

system for absentee voting by qualified

Filipinos abroad.

See also sec. 12, RA 7166; and RA 9189 [The Overseas Absentee Voting Act of 2003)

The Election Period:

Section 9, Art. IX-C. Unless otherwise fixed

by the Commission in special cases, the

election period shall commence ninety days

before the day of election and shall end thirty

days thereafter.

Section 3. OEC Election and campaign

periods. - Unless otherwise fixed in special

cases by the Commission on Elections, which

hereinafter shall be referred to as the

Commission, the election period shall


commence ninety days before the day of the

election and shall end thirty days thereafter.

The period of campaign shall be as

follows:

1. Presidential and Vice-Presidential

Election - 90 days;

2. Election of Members of the Batasang

Pambansa and Local Election - 45 days;

and

3. Barangay Election - 15 days.

The campaign periods shall not include the

day before and the day of the election.

However, in case of special elections under

Article VIII, Section 5, Subsection (2) of the

Constitution, the campaign period shall be

forty-five days.

Note: Take note on the amended campaign period for Senators

Section 5, RA 7166. Election and Campaign Period. - Unless otherwise fixed by the Commission, the election period for the May 11, 1992 regular elections shall commence ninety (90) days before the day of the election and shall end thirty (30) days thereafter.

The campaign periods are hereby fixed as follows:

(a) For President, Vice-President and Senators, ninety (90) days before the day of the election; and

(b) For Members of the House of Representatives and elective provincial, city and municipal officials, forty-five (45) days before the day of the election.

However, in the preparation of the election calendar, the Commission may exclude the day before the day of the election itself, Maundy Thursday and Good Friday.

Any election campaign or partisan political activity for or against any candidate outside of the campaign period herein provided is prohibited and shall be considered as an election offense punishable under Section 263 and 264 of the Omnibus Election Code.

The COMELEC NOTE: For discussions on the COMELEC’s composition, qualifications, inhibitions, etc. see topic on Constitutional Commissions.

Statutory Powers of the COMELEC.

Section 52.Powers and functions of the

Commission on Elections. - In addition to

the powers and functions conferred upon it by

the Constitution, the Commission shall have

exclusive charge of the enforcement and

administration of all laws relative to the

conduct of elections for the purpose of

ensuring free, orderly and honest elections,

and shall:

(a) Exercise direct and immediate supervision

and control over national and local officials or

employees, including members of any

national or local law enforcement agency and

instrumentality of the government required

by law to perform duties relative to the

conduct of elections. In addition, it may

authorize CMT cadets eighteen years of age

and above to act as its deputies for the

purpose of enforcing its orders.

The Commission may relieve any officer or

employee referred to in the preceding

paragraph from the performance of his duties

relating to electoral processes who violates

the election law or fails to comply with its

instructions, orders, decisions or rulings, and

appoint his substitute. Upon recommendation

of the Commission, the corresponding proper

authority shall suspend or remove from office

any or all of such officers or employees who

may, after due process, be found guilty of

such violation or failure.

(b) During the period of the campaign and

ending thirty days thereafter, when in any

area of the country there are persons

committing acts of terrorism to influence

people to vote for or against any candidate or

political party, the Commission shall have the

power to authorize any member or members

of the Armed Forces of the Philippines, the

National Bureau of Investigation, the

Integrated National Police or any similar


agency or instrumentality of the government,

except civilian home defense forces, to act as

deputies for the purpose of ensuring the

holding of free, orderly and honest elections.

(c) Promulgate rules and regulations

implementing the provisions of this Code or

other laws which the Commission is required

to enforce and administer, and require the

payment of legal fees and collect the same in

payment of any business done in the

Commission, at rates that it may provide and

fix in its rules and regulations.

Rules and regulations promulgated by the

Commission to implement the provisions of

this Code shall take effect on the sixteenth

day after publication in the Official Gazette or

in at least daily newspapers of general

circulation. Orders and directives issued by

the Commission pursuant to said rules and

regulations shall be furnished by personal

delivery to accredited political parties within

forty-eight hours of issuance and shall take

effect immediately upon receipt.

In case of conflict between rules, regulations,

orders or directives of the Commission in the

exercise of its constitutional powers and those

issued by any other administrative office or

agency of the government concerning the

same matter relative to elections, the former

shall prevail.

(d) Summon the parties to a controversy

pending before it, issue subpoena and

subpoena duces tecum, and take testimony in

any investigation or hearing before it, and

delegate such power to any officer of the

Commission who shall be a member of the

Philippine Bar. In case of failure of a witness

to attend, the Commission, upon proof of

service of the subpoena to said witnesses,

may issue a warrant to arrest witness and

bring him before the Commission or the

officer before whom his attendance is

required.

Any controversy submitted to the Commission

shall, after compliance with the requirements

of due process, be immediately heard and

decided by it within sixty days from

submission thereof. No decision or resolution

shall be rendered by the Commission either

en banc or by division unless taken up in a

formal session properly convened for the

purpose.

The Commission may, when necessary, avail

of the assistance of any national or local law

enforcement agency and/or instrumentality of

the government to execute under its direct

and immediate supervision any of its final

decisions, orders, instructions or rulings.

(e) Punish contempt provided for in the Rules

of Court in the same procedure and with the

same penalties provided therein. Any

violation of any final and executory decision,

order or ruling of the Commission shall

constitute contempt thereof.

(f) Enforce and execute its decisions,

directives, orders and instructions which shall

have precedence over those emanating from

any other authority, except the Supreme

Court and those issued in habeas corpus

proceedings.

(g) Prescribe the forms to be used in the

election, plebiscite or referendum.

(h) Procure any supplies, equipment,

materials or services needed for the holding

of the election by public bidding: Provided,

That, if it finds the requirements of public

bidding impractical to observe, then by

negotiations or sealed bids, and in both

cases, the accredited parties shall be duly

notified.

(i) Prescribe the use or adoption of the latest

technological and electronic devices, taking

into account the situation prevailing in the

area and the funds available for the purpose:

Provided, That the Commission shall notify

the authorized representatives of accredited

political parties and candidates in areas

affected by the use or adoption of

technological and electronic devices not less


than thirty days prior to the effectivity of the

use of such devices.

(j) Carry out a continuing and systematic

campaign through newspapers of general

circulation, radios and other media forms to

educate the public and fully inform the

electorate about election laws, procedures,

decisions, and other matters relative to the

work and duties of the Commission and the

necessity of clean, free, orderly and honest

electoral processes.

(k) Enlist non-partisan group or organizations

of citizens from the civic, youth, professional,

educational, business or labor sectors known

for their probity, impartiality and integrity

with the membership and capability to

undertake a coordinated operation and

activity to assist it in the implementation of

the provisions of this Code and the

resolutions, orders and instructions of the

Commission for the purpose of ensuring free,

orderly and honest elections in any

constituency.

Such groups or organizations shall function

under the direct and immediate control and

supervision of the Commission and shall

perform the following specific functions and

duties:

A. Before Election Day:

1. Undertake an information campaign on

salient features of this Code and help in the

dissemination of the orders, decisions and

resolutions of the Commission relative to the

forthcoming election.

2. Wage a registration drive in their

respective areas so that all citizens of voting

age, not otherwise disqualified by law may be

registered.

3. Help cleanse the list of voters of illegal

registrants, conduct house-to-house canvass

if necessary, and take the appropriate legal

steps towards this end.

4. Report to the Commission violations of the

provisions of this Code on the conduct of the

political campaign, election propaganda and

electoral expenditures.

B. On Election Day:

1. Exhort all registered voters in their

respective areas to go to their polling places

and cast their votes.

2. Nominate one watcher for accreditation in

each polling place and each place of canvass

who shall have the same duties, functions and

rights as the other watchers of political

parties and candidates. Members or units of

any citizen group or organization so

designated by the Commission except its lone

duly accredited watcher, shall not be allowed

to enter any polling place except to vote, and

shall, if they so desire, stay in an area at

least fifty meters away from the polling place.

3. Report to the peace authorities and other

appropriate agencies all instances of

terrorism, intimidation of voters, and other

similar attempts to frustrate the free and

orderly casting of votes.

4. Perform such other functions as may be

entrusted to such group or organization by

the Commission.

The designation of any group or organization

made in accordance herewith may be revoked

by the Commission upon notice and hearing

whenever by its actuations such group or

organization has shown partiality to any

political party or candidate, or has performed

acts in excess or in contravention of the

functions and duties herein provided and such

others which may be granted by the

Commission.

(l) Conduct hearings on controversies pending

before it in the cities or provinces upon

proper motion of any party, taking into

consideration the materiality and number of

witnesses to be presented, the situation

prevailing in the area and the fund available

for the purpose.


(m) Fix other reasonable periods for certain

pre-election requirements in order that voters

shall not be deprived of their right of suffrage

and certain groups of rights granted them in

this Code.

Unless indicated in this Code, the Commission

is hereby authorized for fix the appropriate

period for the various prohibited acts

enumerated herein, consistent with the

requirements of free, orderly, and honest

elections.

Section 57, BP 881. Measures to ensure

enforcement. - For the effective enforcement

of the provisions of this Code, the

Commission is further vested and charged

with the following powers, duties and

responsibilities:

1. To issue search warrants after

examination under oath or affirmation of

the complainant and the witnesses

Note: This is [or may] no longer be true.

2. To stop any illegal election activity, or

confiscate, tear down, and stop any

unlawful, libelous, misleading or false

election propaganda, after due notice and

hearing.

3. To inquire into the financial records of

candidates and any organization or group of

persons, motu proprio or upon written

representation for probable cause by any

candidate or group of persons or qualified

voter, after due notice and hearing.

For purposes of this section, the

Commission may avail itself of the

assistance of the Commission on Audit, the

Central Bank, the National Bureau of

Investigation, the Bureau of Internal

Revenue, the Armed Forces of the

Philippines, the Integrated National Police of

the Philippines, barangay officials, and other

agencies of the government.

VOTERS QUALIFICATION AND REGISTRATION

………………………………………… Qualifications for suffrage: Under Section 1, Art. V, 1987 Const. Suffrage may be exercised by –

1. all citizens of the Philippines, Note: It is incumbent upon one who claims

Philippine citizenship to prove to the satisfaction of the court that he is really a Filipino. No presumption can be indulged in favor of the claimant of Philippine citizenship, and any doubt regarding citizenship must be resolved in favor of the state (Go vs. Ramos, GR No. 167569-70, Spt. 4, 2009).

2. not otherwise disqualified by law, There exists no presumption that a person is

entitled to vote and that the burden is in the voter to prove that he has the qualifications and none of the disqualifications prescribed by law (US vs. Rosales, No. 9030, Oct. 16, 1914).

3. at least eighteen years of age, Note: Any person, who on the day of

registration, may not have reached the required age or period of residence but, who, on the say of the election shall possess such qualifications, may register as a voter (sec. 9, RA 8189 – The Voters’ Registration Act of 1996).

4. shall have resided in the Philippines for at least one year and in the place wherein they propose to vote, for at least six months immediately preceding the election.

Rationale: Generally, to prevent the possibility of a ―stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the latter from [seeking] an elective office to serve that community.‖ Such provision is aimed at excluding outsiders ―from taking advantage of favorable circumstances existing in that community for electoral gain.‖ Establishing residence in a community merely to meet an election law requirement defeats the purpose of representation: to elect through the assent of voters those most cognizant and sensitive to the needs of the community. This purpose is ―best met by individuals who have either had actual residence in the area for a given period or who have been domiciled in the same area either by origin or by choice‖ (Torayno, Sr. vs Comelec, 337 SCRA 574, Aug. 9, 2000, EN BANC).


―Domicile‖ and ―Residence‖ explained. One may seek a place for purposes such as pleasure, business, or health. If a person’s intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is established, it is residence. An individual can have different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons his domicile in favor of another domicile of choice. In our election law, what has clearly and unequivocally emerged is the fact that residence for election purposes is used synonymously with domicile (Macalintal vs. Comelec).

Note: In election cases, the SC treats domicile

and residence as synonymous terms. Both import not only an intention to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such intention. Domicile denotes a fixed permanent residence to which when absent for business or pleasure, or for like reasons, one intends to return (Pundaodaya vs. COMELEC, GR No. 179313, Sept. 17, 2009).

The residence qualification for purposes of suffrage has two sets of meaning: a) In the phrase ―shall have resided in the

Philippines for at least one year,‖ residence means domicile. A Filipino citizen who is domiciled in the United States, for instance, who stays in the Philippines for one year but does not abandon his United States domicile is not qualified to vote in Philippine elections.

b) But in the phrase ―shall have resided in the place wherein they propose to vote for at least six months,‖ residence means either domicile or temporary residence of at least six months. Thus, one domiciled in a municipality in Camarines Sur but is assigned by his company to Quezon City has a choice of either voting in Camarines Sur or in Quezon City if he has been ―residing‖ in Quezon City for at least six months. Faypon vs Quirino (96 Phil. 294 [1954]) makes no suggestion that ones registration away from his domicile was invalid.

2nd par., sec. 117, BP 881 [and sec. 9,

2nd par., RA 8189]. Any person who

transfers residence to another city,

municipality or country solely by reason of

his occupation; profession; employment in

private or public service; educational

activities; work in military or naval

reservations; service in the army, navy or

air force; the constabulary or national

police force; or confinement or detention

in government institutions in accordance

with law, shall be deemed not to have lost

his original residence.

No literacy, property, or other substantive requirement shall be imposed on the exercise of suffrage.

DISQUALIFICATIONS:

A. Section 118, BP 881. Disqualifications.

- The following shall be disqualified from

voting:

(a) Any person who has been sentenced by

final judgment to suffer imprisonment for

not less than one year, such disability not

having been removed by plenary pardon or

granted amnesty: Provided, however, That

any person disqualified to vote under this

paragraph shall automatically reacquire the

right to vote upon expiration of five years

after service of sentence.

(b) Any person who has been adjudged by

final judgment by competent court or

tribunal of having committed any crime

involving disloyalty to the duly constituted

government such as rebellion, sedition,

violation of the anti-subversion and firearms

laws, or any crime against national security,

unless restored to his full civil and political

rights in accordance with law: Provided,

That he shall regain his right to vote

automatically upon expiration of five years

after service of sentence.

c) Insane or incompetent persons as

declared by competent authority.

B. Section 3, RA 6646. Voters in Cities. -

The registered voters of a highly urbanized

city shall not vote in the election for provincial

officials of the province in which it is located.

No component city shall be declared or

classified as a highly urbanized city within

sixty (60) days prior to a local election.


The registered voters of a component city

shall be entitled to vote in the election for the

provincial officials of the province of which it

is a part, unless its charter provides

otherwise.

REGISTRATION OF VOTERS

…………………………………………

Section 4, BP 881. Obligation to register and

vote. - It shall be the obligation of every

citizen qualified to vote to register and cast

his vote.

Note: This provision is effectively modified by the 1987 Constitution, as discussed earlier. The right to suffrage is privilege, subject to waiver.

Registration does not confer the right to vote; it is but a condition precedent to the exercise of the right. It is a regulation, not a qualification (Yra vs. Abano, 52 Phil. 380).

General Registration of Voters: System of Continuing Registration:

The personal filing of application of

registration of voter shall be conducted daily

in the office of the Election Officer during

regular office hours. No registration shall,

however, be conducted during the period

starting 120 days before a regular election

and 90 days before a special election (sec. 8,

RA 8189). The SC upheld the validity of the COMELEC resolution denying the petition of certain youth sectors to conduct a special registration. The petitioners filed their petition within the 120-day prohibited period for the conduct of voter registration. Petitioners were not denied the opportunity to avail of the continuing registration under RA 8189. The law aids the vigilant and not those who slumber on their rights (Kabataan Party-list vs. COMELEC, GR No. 189868, Dec. 15, 2009). The period within which voters may register to vote is set by law and cannot be changed by a mere resolution of the COMELEC. The SC declared null and void COMELEC Resolution No. 858, which shortened the deadline of voter’s registration to October 31, 2009, instead of December 15, 2009. The added preparations for the May 2010 Automated Elections was not a valid ground to justify its non-compliance with the system of continuing voter registration (Ibid).

Who May Register:

Section 9, RA 8189. Who may Register. (Omitted - Note: Same as who may exercise the right of suffrage, as discussed above.)

Disqualifications:

Section 11, RA 8189. Disqualification. The

following shall be disqualified from registering:

a) Any person who has been sentenced by

final judgment to suffer imprisonment of not

less than one (1) year, such disability not


amnesty: Provided, however, That any person

disqualified to vote under this paragraph shall

automatically reacquire the right to vote upon

expiration of five (5) years after service of sentence;

b) Any person who has been adjudged by

final judgment by a competent court or

tribunal of having committed any crime

involving disloyalty to the duly constituted

government such as rebellion, sedition,

violation of the firearms laws or any crime

against national security, unless restored to

his full civil and political rights in accordance

with law: Provided, That he shall


expiration of five (5) years after service of sentence; and

c) Insane or incompetent persons declared as

such by competent authority unless

subsequently declared by proper authority

that such person is no longer insane or incompetent.

Illiterate or Disabled Voters/Applicants:

Section 14, RA 8189. Illiterate or Disabled

Applicants. Any illiterate person may register

with the assistance of the Election Officer or

any member of an accredited citizen’s arms.

The Election Officer shall place such illiterate

person under oath, ask him the questions,

and record the answers given in order to

accomplish the application form in the

presence of the majority of the members of

the Board. The Election Officer or any

member of an accredited citizen’s arm shall

read the accomplished form aloud to the

person assisted and ask him if the information


given is true and correct The accomplished

form shall be subscribed by the applicant in

the presence of the Board by means of

thumbmark or some other customary mark

and it shall be subscribed and attested by the

majority of the members of the Board.

The attestation shall state the name of the

person assisted, the name of the Election

Officer or the member of the accredited

citizen’s arm who assisted the applicant, the

fact that the Election Officer placed the

applicant under oath, that the Election Officer

or the member of the accredited citizen’s arm

who assisted the applicant read the

accomplished form to the person assisted,

and that the person assisted affirmed its truth

and accuracy, by placing his thumbmark or

some other customary mark on the application in the presence of the Board.

The application for registration of a physically

disabled person may be prepared by any

relative within the fourth civil degree of

consanguinity or affinity or by the Election

Officer or any member of an accredited

citizen’s arm using the data supplied by the

applicant. The fact of illiteracy or disability

shall be so indicated in the application.

The Election Registration Board

Section 15, RA 8189. Election Registration

Board. There shall be in each city and

municipality as many as Election Registration

Boards as there are election officers therein.

In thickly populated cities/municipalities, the

Commission may appoint additional election

officers for such duration as may be necessary.

The Board shall be composed of the Election

Officer as chairman and as members, the

public school official most senior in rank and

the local civil registrar, or in this absence, the city or municipal treasurer.

In case of disqualification of the Election

Officer, the Commission shall designate an

acting Election Officer who shall serve as

Chairman of the Election Registration Board.

In case of disqualification or non-availability

of the Local Registrar or the Municipal

Treasurer, the Commission shall designate

any other appointive civil service official from the same locality as substitute.

No member of the Board shall be related to

each other or to any incumbent city or

municipal elective official within the fourth

civil degree of consanguinity or affinity. If in

succeeding elections, any of the newly elected

city or municipal officials is related to a

member of the board within the fourth civil

degree of consanguinity or affinity, such

member is automatically disqualified to

preserve the integrity of the Election Registration Board.

Every registered party and such organizations

as may be authorized by the Commission

shall be entitled to a watcher in every registration board.

Challenges to the Right to Register:

Section 18, RA 8189. Challenges to Right to

Register. Any voter, candidate or

representative of a registered political party

may challenge in writing any application for

registration, stating the grounds therefor. The

challenge shall be under oath and be attached

to the application, together with the proof of

notice of hearing to the challenger and the

applicant.

Oppositions to contest a registrant’s

application for inclusion in the voter’s list

must, in all cases, be filed not later than the

second Monday of the month in which the

same is scheduled to be heard or processed

by the Election Registration Board. Should the

second Monday of the month fall on a non-

working holiday, oppositions may be filed on

the next following working day. The hearing

on the challenge shall be heard on the third

Monday of the month and the decision shall

be rendered before the end of the month.

Deactivation of Registration:

Section 27, RA 8189. Deactivation of

Registration. The board shall deactivate the

registration and remove the registration

records of the following persons from the

corresponding precinct book of voters and

place the same, properly marked and dated in

indelible ink, in the inactive file after entering the cause or causes of deactivation:


a) Any person who has been sentenced by

final judgment to suffer imprisonment for not

less than one (1) year, such disability not


amnesty: Provided, however, That any person

disqualified to vote under this paragraph shall


expiration of five (5) years after service of

sentence as certified by the clerks of courts of

the Municipal/Municipal

Circuit/Metropolitan/Regional Trial Courts and the Sandiganbayan;

b) Any person who has been adjudged by

final judgment by a competent court or

tribunal of having caused/committed any

crime involving disloyalty to the duly

constituted government such as rebellion,

sedition, violation of the anti-subversion and

firearms laws, or any crime against national

security, unless restored to his full civil and

political rights in accordance with law;

Provided, That he shall regain his right to

vote automatically upon expiration of five (5) years after service of sentence;

c) Any person declared by competent

authority to be insane or incompetent unless

such disqualification has been subsequently

removed by a declaration of a proper

authority that such person is no longer insane

or incompetent;

d) Any person who did not vote in the two (2)

successive preceding regular elections as

shown by their voting records. For this

purpose, regular elections do not include the

Sangguniang Kabataan (SK) elections;

e) Any person whose registration has been ordered excluded by the Court; and

f) Any person who has lost his Filipino citizenship.

For this purpose, the clerks of court for the

Municipal/Municipal

Circuit/Metropolitan/Regional Trial Courts and

the Sandiganbayan shall furnish the Election

Officer of the city or municipality concerned at

the end of each month a certified list of

persons who are disqualified under paragraph

(a) hereof, with their addresses. The

Commission may request a certified list of

persons who have lost their Filipino

Citizenship or declared as insane or

incompetent with their addresses from other

government agencies.

The Election Officer shall post in the bulletin

board of his office a certified list of those

persons whose registration were deactivated

and the reasons therefor, and furnish copies

thereof to the local heads of political parties,

the national central file, provincial file, and the voter concerned.

Reactivation of Registration:

Section 28, RA 8189. Reactivation of

Registration. Any voter whose registration has

been deactivated pursuant to the preceding

Section may file with the Election Officer a

sworn application for reactivation of his

registration in the form of an affidavit stating

that the grounds for the deactivation no

longer exist any time but not later than one

hundred twenty (120) days before a regular

election and ninety (90) days before a special

election.

The Election Officer shall submit said

application to the Election Registration Board for appropriate action.

In case the application is approved, the

Election Officer shall retrieve the registration

record from the inactive file and include the

same in the corresponding precinct book of

voters. Local heads or representatives of

political parties shall be properly notified on

approved applications.

INCLUSION AND EXCLUSION PROCEEDINGS

Jurisdiction:

Section 33, RA 8189. Jurisdiction in

Inclusion and Exclusion Case. The

Municipal and Metropolitan Trial Courts shall

have original and exclusive jurisdiction over

all cases of inclusion and exclusion of voters

in their respective cities or municipalities.

Decisions of the Municipal or Metropolitan

Trial Courts may be appealed by the

aggrieved party to the Regional Trial Court

within five (5) days from receipt of notice

thereof. Otherwise, said decision shall

become final and executory. The regional trial


court shall decide the appeal within ten (10)

days from the time it is received and the

decision shall immediately become final and

executory. No motion for reconsideration shall be entertained.

Thus, COMELEC has no jurisdiction to resolve

the issue regarding the right to vote, the same being cognizable by the courts in the proceedings for the exclusion or inclusion of voters (Canicosa vs. COMELEC, GR No. 120318, Dec. 5, 1997).

Note: It is not within the competence of the trial court in exclusion proceedings, to declare the challenged voter as a resident of another municipality. The jurisdiction of the trial court is limited only to determining the right of the voter to remain in the list of voters or to declare that the challenged voter is not qualified to vote in the precinct in which he is registered, specifying the ground for the voter’s disqualification (Domino vs. COMELEC, GR No. 134015, July 19, 1999). Appeal: Decisions of the MTCs may be appealed to the RTC within 5 days from receipt of notice thereof. Otherwise, said decision shall become final and executory. The RTC shall decide the appeal within 10 days from the time it is received and the decision shall immediately become final and executory. No MR shall be entertained

Common Rules of Procedure:

Section 32, RA 8189. Common Rules

Governing Judicial, Proceedings in the

Matter of Inclusion, Exclusion, and Correction of Names of Voters.

a) Petition for inclusion, exclusion or

correction of names of voters shall be filed during office hours;

b) Notice of the place, date and time of the

hearing of the petition shall be served upon

the members of the Board and the challenged

voter upon filing of the petition. Service of

such notice may be made by sending a copy

thereof by personal delivery, by leaving it in

the possession of a person of sufficient

discretion in the residence of the challenged

voter, or by registered mail. Should the

foregoing procedures not be practicable, the

notice shall be posted in the bulletin board of

the city or municipal hall and in two (2) other

conspicuous places within the city or municipality;

c) A petition shall refer only to one (1)

precinct and implead the Board as respondents;

d) No costs shall be assessed against any

party in these proceedings. However, if the

court should find that the application has

been filed solely to harass the adverse party

and cause him to incur expenses, it shall

order the culpable party to pay the costs and

incidental expenses;

e) Any voter, candidate or political party who

may be affected by the proceedings may intervene and present his evidence;

f) The decision shall be based on the evidence

presented and in no case rendered upon a

stipulation of facts. If the question is whether

or not the voter is real or fictitious, his non-

appearance on the day set for hearing shall

be prima facie evidence that the challenged

voter is fictitious; and

g) The petition shall be heard and decided

within ten (10) days from the date of its

filing. Cases appealed to the Regional Trial

Court shall be decided within ten (10) days

from receipt of the appeal. In all cases, the

court shall decide these petitions not later

than fifteen (15) days before the election and

the decision shall become final and executory.

A. Petition for Inclusion

Section 34, RA 8189. Petition for Inclusion of

Voters in the List. Any person whose

application for registration has been

disapproved by the Board or whose name has

been stricken out from the list may file with

the court a petition to include his name in the

permanent list of voters in his precinct at any

time except one hundred five (105) days prior

to a regular election or seventy-five (75) days

prior to a special election. It shall be

supported by a certificate of disapproval of his

application and proof of service of notice of

his petition upon the Board. The petition shall

be decided within fifteen (15) days after its

filing.

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If the decision is for the inclusion of voters in

the permanent list of voters, the Board shall

place the application for registration

previously disapproved in the corresponding

book of voters and indicate in the application

for registration the date of the order of

inclusion and the court which issued the same.

Petition for Inclusion under COMELEC Resolution 9269 (General Instructions for the Resumption of Continuing Registration/Certification of Qualified Overseas Absentee Voters for Purposes of the May 13, 2013 National Elections, and Subsequent Elections Thereafter) – The aggrieved party by himself or through his authorized representative may file a petition for inclusion with the proper MeTC in Manila within 10 days from receipt of the notice of denial of the MR. The petition shall be decided within 15 days after its filing on the basis of the documents submitted. Should the court fail to render a decision within the prescribed period, the ruling of the Resident Election Registration Board shall be considered affirmed with finality. If the decision is for the inclusion of voters in the permanent list of voters, the Board shall place the application for registration previously disapproved in the corresponding book of voters and indicate in the application for registration the date of the order of inclusion and the court which issued the same.

B. Petition for Exclusion

Section 35, RA 8189. Petition for Exclusion

of Voters from the List. Any registered

voters, representative of a political party or

the Election Officer, may file with the court a

sworn petition for the exclusion of a voter

from the permanent list of voters giving the

name, address and the precinct of the

challenged voter at any time except one

hundred (100) days prior to a regular election

or sixty-five (65) days before a special

election. The petition shall be accompanied by

proof of notice to the Board and to the

challenged voter and shall be decided within ten (10) days from its filing.

If the decision is for the exclusion of the voter

from the list, the Board shall, upon receipt of

the final decision, remove the voter’s

registration record from the corresponding

book of voters, enter the order of exclusion

therein, and thereafter place the record in the inactive file.

C. Annulment of Book of Voters

Section 39, RA 8189. Annulment at Book of

Voters. The Commission shall, upon verified

petition of any voter or election officer or duly

registered political party, and after notice and hearing, annul any book of voters –

1. that is not prepared in accordance with

the provisions of this Act

2. or was prepared through fraud,

bribery, forgery, impersonation,

intimidation, force or any similar

irregularity,

3. or which contains data that are

statistically improbable.

No order, ruling or decision annulling a book

of voters shall be executed within ninety (90) days before an election.

Note: The annulment of the list of voters shall not constitute a ground for a pre-proclamation contest (Utulam vs. COMELEC, GR Nos. 93201-04, 93205, June 26, 1990).

Reassignment of Election Officers:

Section 44, RA 8189. Reassignment of

Election Officers. No Election Officer shall hold

office in a particular city or municipality for

more than four (4) years. Any election officer

who, either at the time of the approval of this

Act or subsequent thereto, has served for at

least four (4) years in a particular city or

municipality shall automatically be reassigned

by the Commission to a new station outside the original congressional district.

Reassignment vs. Equal Protection of the Law The singling out of election officers in order to ―ensure the impartiality of election officials by preventing them from developing familiarity with the people of their places of assignment‖ does not violate the equal protection clause of the Constitution. It may be true that all other officers of Comelec

referred to by petitioners are exposed to the same

evils sought to be addressed by the statute.

However, in this case, it can be discerned that the

legislature thought the noble purpose of the law

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would be sufficiently served by breaking an

important link in the chain of corruption than by

breaking up each and every link thereof. Verily,

under Sec. 3(n) of RA 8189, election officers are the

highest officials or authorized representatives of the

Comelec in a city or municipality. It is safe to say

that without the complicity of such officials, large-

scale anomalies in the registration of voters can

hardly be carried out. (De Guzman, Jr., et al vs

Comelec, L-129118, July 19, 2000, EN BANC).

Local and Overseas Absentee Voting GR: A person must be physically present in the polling place whereof he is a registered voter to be able to vote. Exceptions: 1. Members of the BEI (sec. 169, OEC); 2. Any person who by reason of public functions

and duties, is not in his place of registration on election day, may vote in the city/municipality where he is assigned on election day, subject to the rules and regulations implemented by the COMELEC;

3. Overseas absentee voter – citizen of the Philippines who is qualified to register and vote under RA 9189, who is abroad on the day of the elections.

Registration as Overseas Absentee Voter:

Sec. 4, RA 9189. Coverage. – All citizens of

the Philippines abroad, who are not otherwise

disqualified by law, at least eighteen (18)

years of age on the day of elections, may

vote for president, vice-president, senators and party-list representatives.

Requirements: i. At least 18 years of age on the day of the

elections; ii. Not other wise disqualified by law iii. submission of proper documents.

a. Passport; or in absence, a certification

from the DFA that it has reviewed the documents submitted by the applicant and found them to be sufficient for the issuance of a passport;

b. In case of a seafarer, a photocopy of his Seaman’s Book or any other pertinent document;

c. Incase of dual citizens, original or certified true copy of the Order of Approval of his application to retain or

reacquire his Filipino citizenship or Oath of Allegiance issued by the Post of the Bureau of Immigration (COMELEC Resolution 9269)

Disqualified from Registering [RA 9189 and COMELEC Resolution 9269]: 1. Those who have lost Philippine citizenship in

accordance with law; 2. Those who expressly renounces their Philippine

citizenship and who have pledge allegiance to a foreign country; except dual citizens as referred to under RA 9225;

3. Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishable by imprisonment of not less than 1 year, including those who have committed and been found guilty of disloyalty as defined under article 137, RPC, such disability not having been removed by plenary pardon and amnesty; provided, however, that any person disqualified to register shall automatically acquire the right to register upon expiration of 5 years after service of sentence and provided further that the Commission may take cognizance of final judgments issued by foreign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rules of Court on execution of judgments.

4. Any citizen abroad previously declared insane or incompetent by a competent authority in the Philippines or abroad, as verified by the Philippine embassies, consulates of Foreign Service establishments concerned unless such authority subsequently certifies that such person is no longer insane or incompetent.

5. An immigrant or permanent resident who is recognized as such in the host country, unless he executes upon filing of an application for registration, as an absentee voter, an affidavit declaring that –

i. He shall resume actual physical residence in the Philippines;

ii. He has not applied for citizenship in another country.

Detainee Voting Under section 1 of both COMELEC Resolution No. 8811, and COMELEC Resolution No. 9070, Detainee Voting may be availed of by any registered detainee whose registration record is not deactivated/cancelled. Voting may be done either through the special polling place inside jails or escorted voting. Detainee: For purposes of Detainee voting, is understood to be any person –


a. Confined in jail, formally charged for any crime and awaiting or undergoing trial;

b. Serving sentence of imprisonment for less than 1 year; or

c. Whose conviction of a crime involving disloyalty, such as rebellion, sedition, violation of firearms laws or any crime against national security or for any other crime is on appeal.

Note: Under section 3, Rule 2 of Resolution No. 9371 [March 6, 2012], detainees who shall be 18 years of age on the day of the election and/or committed inside the detention centers for at least 6 months immediately preceding the election may be registered as a voter. Special Polling Places Inside Jails Shall be established in jails with at least 100 detainees who are residents and registered as such in the municipality or city where the jail facility is located. In case of cities with several districts, detainee voters of districts other than the district where the jail is located are entitled to vote n the special polling places inside the jails. (sec. 5, COMELEC Resolution No. 8811). Escorted Detainee Voters – The following shall avail of the escorted voting: a. Detainee voters who are residents and

registered voters of municipalities/cities other than the town/city of incarceration; and

b. Detainee voters in jail facilities where no special polling places are established. Provided: that said detainee voters obtain court orders allowing them to vote in the polling place where they are registered (sec. 36, COMELEC Resolution No. 8811 and 9070).

Disqualifications: Same disqualification in sec. 118, OEC.

POLITICAL PARTIES

.....................................................................

A free and open party system shall be

allowed to evolve according to the free

choice of the people (sec. 2 [5], Art. IX-C.

No votes cast in favor of a political party

or coalition shall be valid, except those

registered under the party-list system as

provided in the Constitution. (sec. 7, Art.

IX-C.

Purposes of Registration: i. To acquire juridical personality; ii. To entitle it to rights and privileges granted

to political parties; and iii. To participate in the party-list system.

Party-list System: Is a mechanism of proportional representation in the election of representative to the House of Representatives from national, regional and sectoral parties or organizations or coalitions thereof registered with the Commission on Elections (RA 7941).

Political parties registered under the

party-list system shall be entitled to

appoint poll watchers in accordance with

law (sec. 8, Art. IX-C.

Party-list representatives shall constitute

20% of the total number of

representatives in the House of

Representatives (sec. 5 [2], Art. VI). NOTE: See RA 7941 under the Discussions on the Legislative Department. Four Inviolable Principles under RA 7941 and the Constitution: (Veterans Federation Party vs. COMEMLEC, GR No. 136781, Oct. 6, 2000) 1. The 20% allocation. The combined number of all

the party-list congressmen shall not exceed 20% of the total membership of the House of Representatives;

2. The 2% threshold. Only those parties garnering a minimum of 2% of the total votes cast for the party-list system are qualified to have a seat in the House;

3. The 3 seat limit. Each qualified party, regardless of the number of votes it actually obtained, is entitled to a maximum of 3 seats;

4. Proportional representation. The additional seats which a qualified party is entitled to shall be computed ―in proportion to their total number of votes‖.

The continued operation of the 2% threshold as it applies to the allocation of the additional seat is no unconstitutional because this threshold mathematically prevents the filling-up of the available party-list seats. The additional seats shall be distributed to the parties in a second round of seat allocation (Barangay Ass. for National Advancement [BANAT] vs. COMELEC, GR No. 179271, April 21, 2009).


GUIDELINES in order that a party registered under the party-list system may be entitled to a seat in the House: (Ang Bagong Bayani – OFW Labor Party vs. COMELEC, GR No. 147589, June 26, 2001). 1) Must represent marginalized and under

represented sectors; 2) Major political parties must comply with this

statutory policy; 3) Must be subject to prohibition against

registration of religious sects; 4) The party must not be disqualified under the law; 5) The party must not be an adjunct of an entity or

project funded by the government; 6) The party and its nominees must comply with

the requirements of the law; 7) The nominee must also represent a

marginalized or under-represented sector;

The party-list group and nominees must submit documentary evidence in consonance with the Constitution, RA 7941, and other laws to duly prove that the nominees truly belong to the marginalized and underrepresented sectors, the sectoral party, organization, political party or coalition they seek to represent (sec. 1[8], Rule 4, COMELEC Resolution No. 9372, March 6, 2012)

8) The nominee must be able to contribute to the

formulation and enactment of appropriate legislation that will benefit the nation.

Notes:

Respondent COMELEC has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth. Neither has the COMELEC condescend to justify its position that petitioner’s admission into the party-list system would be so harmful as to irreparably damage the moral fabric of society. From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the dame interest in participating in the party-list system on the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors (Ang Ladlad LGBT Party, vs. COMELEC, GR No. 190582, April 8, 2010).

CANDIDATES; CERTIFICATES OF CANDIDACY

………………………………………………....

Note: Qualifications by law are continuing requirements and must be possessed for the duration of the officer’s active tenure. Once any of the required qualifications is lost, his title to office may be seasonably challenged (Frivaldo vs. COMELEC, 176 SCRA 245). The LGC does not specify any particular date when the candidate must possess Filipino citizenship. Philippine citizenship is required to ensure that no alien shall govern our people. An official begins to govern only upon his proclamation and on the day that his term begins (Ibid.). DISQUALIFICATIONS: A. Under the OEC [BP 881, sec. 12] –

1) Declared as incompetent or insane by competent authority.

2) Sentenced by final judgment for subversion (no more crime of subversion- already repealed), insurrection, rebellion or any offense for which he has been sentenced to a penalty of more than 18 months of imprisonment.

3) Sentenced by final judgment for a crime involving moral turpitude.

Violation of BP 22 (Villaber vs.

COMELEC, GR No. 148326, Nov. 15, 2001).

Violation of Anti-Fencing Law (De la Torre vs. COEMLEC, 258 SCRA 483).

4) A person who is a permanent resident of or an immigrant to a foreign country.

The ―green card‖ is an ample proof that

the holder thereof is a permanent resident of, or an immigrant of to the US (Caasi vs. COMELEC, 191 SCRA 229).

5) Section 68, OEC Disqualifications. -

Any candidate who, in an action or

protest in which he is a party is

declared by final decision of a

competent court guilty of, or found by

the Commission of having

(a) given money or other material

consideration to influence, induce or

corrupt the voters or public officials

performing electoral functions;


(b) committed acts of terrorism to

enhance his candidacy;

(c) spent in his election campaign an

amount in excess of that allowed by

this Code;

(d) solicited, received or made any

contribution prohibited under Sections

89, 95, 96, 97 and 104; or

(e) violated any of Sections 80, 83,

85, 86 and 261, paragraphs d, e, k,

v, and cc, subparagraph 6,

shall be disqualified from continuing as a

candidate, or if he has been elected, from

holding the office. Any person who is a

permanent resident of or an immigrant to

a foreign country shall not be qualified to

run for any elective office under this Code,

unless said person has waived his status

as permanent resident or immigrant of a

foreign country in accordance with the

residence requirement provided for in the

election laws.

B. Under the LGC -

Section 40. Disqualifications. - The

following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for

an offense involving moral turpitude or for

an offense punishable by one (1) year or

more of imprisonment, within two (2) years after serving sentence;

Note: Even if the candidate is under probation, the disqualification still subsists, because the effect of the probation is only to suspend the implementation of the sentence [not the fact of being convicted with an offense involving moral turpitude] (De La Torre, COMELEC, supra.)

However: Those who have not served their sentence by reason of the grant of probation which should not be equated with service of sentence, should not likewise be disqualified from running for a local elective office because the 2-year period of ineligibility does not even begin to run [during the period of probation] (Moreno vs. COMELEC, GR No. 168550, Aug. 10, 2006).

(b) Those removed from office as a result

of an administrative case;

Note: an elective local official who was removed from office as a result of an administrative case prior to Jan. 1, 1992 [the effectivity of LGC], is not disqualified from running for an elective local public office because the sec. 40 cannot be given retroactive effect (Grego vs. COEMELEC, GR No. 125955, June 19, 1997).

A municipal mayor who had been ordered removed from office by the SP, was disqualified despite his allegation that the decision is not yet final [and executory] because he had not received a copy of the decision, inasmuch as it is shown that he merely refused to accept delivery of the copy of the decision (Reyes vs. COMELEC, 254 SCRA 514).

(c) Those convicted by final judgment for

violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

Note: Just connect to topic on citizenship and see Mercado vs. Manzano, 307 SCRA 630).

In the absence of any official action or approval by the proper authorities, a mere application for repatriation, does not, and cannot amount to an automatic reacquisition of applicant’s Philippine citizenship (Labo vs. COMELEC, GR No. 105111, July 3, 1992).

The ―oath of allegiance‖ contained in the COC, which is substantially similar to the one contained in sec. 3, of RA 9225 [The Citizenship Retention and Reacquisition Act], does not constitute the personal and sworn renunciation sought under sec. 5[2], RA 9225. The renunciation of foreign citizenship is an additional requisite only for those retained or reacquired Philippine citizenship under RA 9225 and who seek elective public posts, considering their special circumstance of having one citizenship (De Guzman vs. COMELEC, GR No. 180048, June 19, 2009).

(e) Fugitives from justice in criminal or

non-political cases here or abroad;

Note: Fugitives from justice ―includes not only those who flee after conviction to avoid punishment, but likewise those, who after being charged, flee to avoid prosecution‖. Because the


arrival in the Philippines from the US preceded the filing of felony complaint in LA Court by almost 5 months, Rodriguez cannot be considered a fugitive from justice (Rodriguez vs. COMELEC, GR No. 120099, July 24, 1996).

(f) Permanent residents in a foreign

country or those who have acquired the

right to reside abroad and continue to

avail of the same right after the effectivity of this Code; and

Note: see Caasi vs. COMELEC, supra.

(g) The insane or feeble-minded.

Certificate of Candidacy [COC]

COC; Defined A statement of a person seeking to run for a public office certifying that he announces his candidacy for the office mentioned and that he is eligible for the office, the name of the political part to which he belongs if he belongs to any, and his post office address for all election purposes being as well stated (Sinaca vs. Mula, GR No. 135691, Sept. 27, 1999). Purposes of Filing COC: a) to enable the voters to know, at least sixty (60)

days before the regular election, the candidates among whom they are to make the choice, and

b) to avoid confusion and inconvenience in the tabulation of the votes cast.

For if the law did not confine the choice or election by voters to the duly registered candidates, there might be as many persons voted for as there are voters, and votes might be cast even for unknown or fictitious persons as a mark to identify the votes in favor of a candidate for another office in the same election. (Miranda vs. Abaya, L-136351, July 28, 1999).

Section 73, BP 881. Certificate of

candidacy. - No person shall be eligible for

any elective public office unless he files a

sworn certificate of candidacy within the

period fixed herein.

A person who has filed a certificate of

candidacy may, prior to the election,

withdraw the same by submitting to the office

concerned a written declaration under oath.

No person shall be eligible for more than one

office to be filled in the same election, and if

he files his certificate of candidacy for more

than one office, he shall not be eligible for

any of them.

However, before the expiration of the period

for the filing of certificates of candidacy, the

person who was filed more than one

certificate of candidacy may declare under

oath the office for which he desires to be

eligible and cancel the certificate of candidacy

for the other office or offices.

The filing or withdrawal of a certificate of

candidacy shall not affect whatever civil,

criminal or administrative liabilities which a

candidate may have incurred.

Notes: Formal Defects in the COC While COC is required to be under oath, the election of a candidate cannot be annulled on the sole ground of formal defects in his COC, such as the lack of the required oath (De Guzman vs. Board of Canvassers, 48 Phil. 211). The omission of a candidate to indicate in his COC his precinct number and particular barangay where he is a registered voter is not sufficient to disqualify him. The LGC does not require these data to be indicated in the COC. It is enough that he is a registered voter in the precinct where he intends to vote which should be within the district where he is running for office (Jurilla vs. COMELEC, GR No. 105435, June 2, 1994). When To Raise Objections on Defective COCs: Defects in the certificates of candidacy should have been questioned on or before the election and not after the will of the people has been expressed through the ballots. While provisions relating to certificates of candidacy are mandatory in terms, it is an established rule of interpretation as regards election laws, that mandatory provisions requiring certain steps before elections will be construed as directory after the elections, to give effect to the will of the electorate (Saya-ang, L-155087, Nov. 28, 2003). Where To File Declaration of Withdrawal There is nothing in sec. 73, which mandates that the affidavit of withdrawal must be filed with the same office where the COC to be withdrawn was filed. Thus, it can be filed directly with the main office in


the COMELEC, the regional election director concerned, the office of the provincial election supervisor of the province to which the municipality belongs, or the office of the municipal election officer of the municipality (Loreto-Go vs. COMELEC, GR No. 147741, May 10, 2001). Effect of Withdrawal The withdrawal of COC shall cause the disqualification of the candidate to be elected for the position (Ycain vs. Caneja, 81 Phil. 773). Withdrawal of withdrawal The withdrawal of the withdrawal, for the purpose of reviving the COC must be made within the period provided by law for the filing of the COC (Monsale vs. Nico, 83 Phil. 758).

Effect of Filing of COC:

Section 66, BP 881. Candidates holding

appointive office or positions. - Any

person holding a public appointive office or

position, including active members of the

Armed Forces of the Philippines, and officers

and employees in government-owned or

controlled corporations, shall be considered

ipso facto resigned from his office upon the

filing of his certificate of candidacy.

Note: Applies to GOCCs without original charter (PNOC Energy Development Corp. vs. NLRC, GR No. 100947, May, 31, 1993). The SC upheld the validity of sec. 66, OEC. This provision satisfies the requisites of the equal protection test, specially the 2

nd requisite that it must

be germane to the purpose of the law. It must be emphasized that the purpose of the law is to defer to the sovereign will of the people by letting the elective officials serve until the end of the terms for which they were elected notwithstanding the filing of their COCs. On the contrary, the automatic resignation rule is imposed upon appointive officials because unlike elective officials, the former are strictly prohibited in any partisan political activity or from taking any part in any election, except to vote (Eleazar Quinto vs. COMELEC, GR No. 189698, Feb. 22, 2010).

Section 67.Candidates holding elective

office. - Any elective official, whether

national or local, running for any office other

than the one which he is holding in a

permanent capacity, except for President and

Vice-President, shall be considered ipso facto

resigned from his office upon the filing of his

certificate of candidacy.

Note: sec. 67, BP 881 and sec. 11 of RA 8436 on automatic resignation of an elective official running for any other elective position that the one which he is holding in a permanent capacity have been repealed by sec. 14, RA 9006 [The Fair Election Act]. The repeal means that such elective official is no longer deemed resigned when he filed a COC for any position.

Duty of the COMELEC

Section 76, BP 881. Ministerial duty of

receiving and acknowledging receipt. -

The Commission, provincial election

supervisor, election registrar or officer

designated by the Commission or the board of

election inspectors under the succeeding

section shall have the ministerial duty to

receive and acknowledge receipt of the

certificate of candidacy.

GR: The Commission has no discretion to give or not to give due course to a certificate of candidacy filed in due form. It may only look for patent defects but it may not go into matters not appearing on their face (Abcede vs. Imperial, 103 Phil. 136). The COMELEC, may not, by itself, deny due course to or cancel a COC filed in due form. Sec. 78, OEC, which treats of a petition to deny due course to or to cancel a COC on the ground that any material representation therein is false, requires that the candidate must be notified of the petition against him and he should be given the opportunity to present evidence in his behalf (Cipriano vs. COMELEC, GR No. 1588330, Aug. 10, 2004). Exceptions: Instances When the COMELEC may go beyond the face of the COC:

a. Section 69, BP 881. Nuisance

candidates. - The Commission may motu

proprio or upon a verified petition of an

interested party, refuse to give due course

to or cancel a certificate of candidacy if it

is shown that said certificate has been

filed to put the election process in

mockery or disrepute or to cause

confusion among the voters by the

similarity of the names of the registered


candidates or by other circumstances or

acts which clearly demonstrate that the

candidate has no bona fide intention to

run for the office for which the certificate

of candidacy has been filed and thus

prevent a faithful determination of the

true will of the electorate.

Section 5, RA 6646. Procedure in Cases

of Nuisance Candidates. -

(a) A Verified petition to declare a duly

registered candidate as a nuisance candidate

under Section 69 of Batas Pambansa Blg. 881

shall be filed personally or through duly

authorized representative with the

Commission by any registered candidate for

the same office within five (5) days from the

last day for the filing of certificates of

candidacy. Filing by mail not be allowed.

(b) Within three (3) days from the filing of

the petition, the Commission shall issue

summons to the respondent candidate

together with a copy of the petition and its

enclosures, if any.

(c) The respondent shall be given three (3)

days from receipt of the summons within

which to file his verified answer (not a motion

to dismiss) to the petition, serving copy

thereof upon the petitioner. Grounds for a

motion to dismiss may be raised as a

affirmative defenses.

(d) The Commission may designate any of its

officials who are lawyers to hear the case and

receive evidence. The proceeding shall be

summary in nature. In lieu of oral

testimonies, the parties may be required to

submit position papers together with

affidavits or counter-affidavits and other

documentary evidence. The hearing officer

shall immediately submit to the Commission

his findings, reports, and recommendations

within five (5) days from the completion of

such submission of evidence. The Commission

shall render its decision within five (5) days

from receipt thereof.

(e) The decision, order, or ruling of the

Commission shall, after five (5) days from

receipt of a copy thereof by the parties, be

final and executory unless stayed by the

Supreme Court.

(f) The Commission shall within twenty-four

hours, through the fastest available means,

disseminate its decision or the decision of the

Supreme Court to the city or municipal

election registrars, boards of election

inspectors and the general public in the

political subdivision concerned.

Note: The proclamation of the winning candidate renders moot and academic a motion for reconsideration filed by a candidate who had been earlier declared by the COMELEC to be a nuisance candidate (Garcia vs. COMELEC, GR No. 121139, July 12, 1996).

b. Section 78, BP 881. Petition to deny

due course to or cancel a certificate of

candidacy. - A verified petition seeking to

deny due course or to cancel a certificate

of candidacy may be filed by the person

exclusively on the ground that any

material representation contained therein

as required under Section 74 hereof is

false. The petition may be filed at any

time not later than twenty-five days from

the time of the filing of the certificate of

candidacy and shall be decided, after due

notice and hearing, not later than fifteen

days before the election.

Requisites for the Petition i. The false representation pertains to material

matter affecting substantive rights of a candidate; and

ii. The false representation must consist of deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible (Salcedo II vs. COMELEC, GR No. L-16835, July 26, 1960).

Note: Sec. 78 requires that the candidate must be notified of the petition against him, and he should be given the opportunity to present evidence in his behalf (Cipriano vs. COMELEC, GR No. 158830, Aug. 10, 2004).


Jurisdiction over the petition is with the COMELEC division and not with the en banc (Garvida vs. Sales, GR No. 122872, Sept. 10, 1997).

A petition for the cancellation filed after the lapse of the 25 days after the filing of the COC on the, on the ground of material misrepresentation, cannot be given due course. [25 day period is reckoned from the date of filing of COC, and NOT from the date of discovery of the material misrepresentation] (Loong vs. COMELEC, 216 SCRA 760).

A facsimile of a petition for disqualification is not a genuine pleading; it is not sanctioned by the COMELEC Rules of Procedure (Garvida vs. Sales, supra).

Effect of Disqualification Case:

Section 6, RA 6646. Effect of

Disqualification Case. - Any candidate who

has been declared by final judgment to be

disqualified shall not be voted for, and the

votes cast for him shall not be counted. If for

any reason a candidate is not declared by

final judgment before an election to be

disqualified and he is voted for and receives

the winning number of votes in such election,

the Court or Commission shall continue with

the trial and hearing of the action, inquiry, or

protest and, upon motion of the complainant

or any intervenor, may during the pendency

thereof order the suspension of the

proclamation of such candidate whenever the

evidence of his guilt is strong.

BE CAREFUL: A distinction should be delineated as to when the finality of judgment disqualifying the candidate took effect. If the disqualification is already final and executory before the day of the election, the Doctrine of Rejection of the Second Placer will not apply. The candidate obtaining the 2

nd

highest number of votes shall be proclaimed the winner. The votes cast for the winning bit disqualified candidate shall be considered stray votes. However, if the disqualification is not yet final and executory on the day of the election, the candidate obtaining the 2

nd highest number of votes cannot be

declared as the winner. To do so would be to disenfranchise the will of the electorate. The rules on succession to vacancy in elective office will apply instead.

Death, Disqualification or Withdrawal of Candidate:

Section 77, BP 881. Candidates in case of

death, disqualification or withdrawal of

another. - If after the last day for the filing

of certificates of candidacy, an official

candidate of a registered or accredited

political party dies, withdraws or is

disqualified for any cause, only a person

belonging to, and certified by, the same

political party may file a certificate of

candidacy to replace the candidate who died,

withdrew or was disqualified.

The substitute candidate nominated by the

political party concerned may file his

certificate of candidacy for the office affected

in accordance with the preceding sections not

later than mid-day of the day of the election.

If the death, withdrawal or disqualification

should occur between the day before the

election and mid-day of election day, said

certificate may be filed with any board of

election inspectors in the political subdivision

where he is a candidate, or, in the case of

candidates to be voted for by the entire

electorate of the country, with the

Commission.

Note: When the candidate who dies is an independent candidate, he cannot be substituted (Recabo vs. COMELEC, GR No. 134293, June 21, 1999). Substitution of a candidate, by reason of withdrawal, must be made after the last day for filing of COC, not when the withdrawal is effected on or before such last day (Villanueva vs. COMELEC, GR No. L-54718, Dec. 4, 1985). A candidate whose COC has been cancelled or not given due course cannot be substituted by another (Miranda vs. Abaya, GR No. 136351, July 28, 1999).

Reason: There is no valid COC to be substituted on the first place.

The SC applied the principle of expressio unius est exclusio alterius because when the law enumerated the occasion where a candidate may be validly substituted, no mention was made of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his COC (Ong vs. Alegre, GR No. 163295, 163354, Jan. 2, 2006).


Substitution of Candidates:

Section 12, RA 9006. Substitution of

Candidates. – In case of valid substitutions

after the official ballots have been printed,

the votes cast for the substituted candidates

shall be considered as stray votes but shall

not invalidate the whole ballot. For this

purpose, the official ballots shall provide

spaces where the voters may write the name

of the substitute candidates if they are voting

for the latter: Provided, however, That if the

substitute candidate of the same family

name, this provision shall not apply.

CAMPAIGN; ELECTION PROPAGANDA;

CONRIBUTIONS AND EXPENSES

…………………………………………………

Section 79, BP 881. Definitions. - As used in

this Code:

(a) The term "candidate" refers to any

person aspiring for or seeking an elective

public office, who has filed a certificate of

candidacy by himself or through an accredited

political party, aggroupment, or coalition of

parties;

Note: A person is considered a candidate only at the start of the campaign period (Lanot vs. COMELEC, GR No. 164858, Nov. 16, 2006).

The SC ruled that under the law, ―candidate‖ has

been defined as ―any person aspiring for or seeking an elective public office, who has filed a COC‖ and that ―any person who filed a COC within the filing period shall only be considered as a candidate at the start of the campaign period for which he filed his COC‖ (Penera vs. COMELEC, GR No. 181613, Nov. 25, 2009).

This means that a candidate is liable for an election offense only for acts done during the campaign period, not before. The Court further said that what the law says is ―any unlawful act or omission applicable to a candidate shall take effect only upon the start of the campaign period. The plain meaning of this provision is that the effective date when partisan political acts become unlawful as to a candidate is when the campaign period starts. Before the start of the campaign period, the same partisan political acts are lawful.‖

(b) The term "election campaign" or

"partisan political activity" refers to an act

designed to promote the election or defeat of

a particular candidate or candidates to a

public office which shall include:

(1) Forming organizations, associations,

clubs, committees or other groups of

persons for the purpose of soliciting votes

and/or undertaking any campaign for or

against a candidate;

(2) Holding political caucuses,

conferences, meetings, rallies, parades, or

other similar assemblies, for the purpose

of soliciting votes and/or undertaking any

campaign or propaganda for or against a

candidate;

(3) Making speeches, announcements or

commentaries, or holding interviews for or

against the election of any candidate for

public office;

(4) Publishing or distributing campaign

literature or materials designed to support

or oppose the election of any candidate;

or

(5) Directly or indirectly soliciting votes,

pledges or support for or against a

candidate.

The foregoing enumerated acts if performed

for the purpose of enhancing the chances of

aspirants for nomination for candidacy to a

public office by a political party,

aggroupment, or coalition of parties shall not

be considered as election campaign or

partisan election activity.

Public expressions or opinions or discussions

of probable issues in a forthcoming election or

on attributes of or criticisms against probable

candidates proposed to be nominated in a

forthcoming political party convention shall

not be construed as part of any election

campaign or partisan political activity

contemplated under this Article.


Prohibited Acts

1. Prohibition against premature campaigning –

Section 80 BP 881 .Election campaign or

partisan political activity outside

campaign period. - It shall be unlawful for

any person, whether or not a voter or

candidate, or for any party, or association of

persons, to engage in an election campaign or

partisan political activity except during the

campaign period: Provided, That political

parties may hold political conventions or

meetings to nominate their official candidates

within thirty days before the commencement

of the campaign period and forty-five days for

Presidential and Vice-Presidential election.

COMMENT: In view of the ruling in Penera vs. COMELEC, in relation to sec. 79 of the OEC, this provision is rendered obsolete or at least in applicable. It is noted that the prohibition on early campaign will not anymore apply because –

i. As defined in sec. 79, OEC, election campaign refers to acts designed to promote the election or defeat of a candidate to a public office;

ii. And as ruled in Penera, a person who filed his COC is deemed candidate only upon the start of the campaign period.

Thus, any act, therefore, intended to promote the election or defeat of a person in the election, done before the campaign period is not [technically speaking] an early campaign as the person is not yet considered a candidate during such period. This is the reason of the proliferation of ―advocacy ads‖ or ―info-mercials‖ showcased by some politicians before the start of the campaign period. These ―trapos‖ benefit in this loophole of the law that needs to be plugged.

2. Prohibited transportation, food and drinks –

Section 89, BP 881. Transportation, food

and drinks. - It shall be unlawful for any

candidate, political party, organization, or any

person to give or accept, free of charge,

directly or indirectly, transportation, food or

drinks or things of value during the five hours

before and after a public meeting, on the day

preceding the election, and on the day of the

election; or to give or contribute, directly or

indirectly, money or things of value for such

purpose.

3. Prohibited Campaign

Under Section 6.6; 6.7; and 6.8, RA 9006: 1) Any media practitioner who is an official of

a political party or a member of the campaign staff of a candidate or political party shall not use his/her time or space to favor any candidate or political party.

2) Public exhibition of a movie, cinematograph or documentary portrayed by an actor or media personality who is himself a candidate during the campaign period.

3) Public exhibition of movie, cinematograph or documentary portraying the life or biography of a candidate during the campaign period.

4. Prohibition against intervention of foreigners

–

Section 81 BP 881. Intervention of

foreigners. - It shall be unlawful for any

foreigner, whether judicial or natural person,

to aid any candidate or political party, directly

or indirectly, or take part in or influence in

any manner any election, or to contribute or

make any expenditure in connection with any

election campaign or partisan political

activity.

5. Prohibited contributions –

Section 95, BP 881. Prohibited

contributions. - No contribution for purposes

of partisan political activity shall be made

directly or indirectly by any of the following:

(a) Public or private financial institutions:

Provided, however, That nothing herein

shall prevent the making of any loan to a

candidate or political party by any such

public or private financial institutions

legally in the business of lending money,

and that the loan is made in accordance

with laws and regulations and in the

ordinary course of business;

(b) Natural and juridical persons operating

a public utility or in possession of or


exploiting any natural resources of the

nation;

(c) Natural and juridical persons who hold

contracts or sub-contracts to supply the

government or any of its divisions,

subdivisions or instrumentalities, with

goods or services or to perform

construction or other works;

(d) Natural and juridical persons who have

been granted franchises, incentives,

exemptions, allocations or similar

privileges or concessions by the

government or any of its divisions,

subdivisions or instrumentalities, including

government-owned or controlled

corporations;

(e) Natural and juridical persons who,

within one year prior to the date of the

election, have been granted loans or other

accommodations in excess of P100,000 by

the government or any of its divisions,

subdivisions or instrumentalities including


corporations;

(f) Educational institutions which have

received grants of public funds amounting

to no less than P100,000.00;

(g) Officials or employees in the Civil

Service, or members of the Armed Forces

of the Philippines; and

(h) Foreigners and foreign corporations.

It shall be unlawful for any person to solicit or

receive any contribution from any of the

persons or entities enumerated herein.

6. Prohibited solicitation and receipt of foreign contributions –

Section 96, BP 881. Soliciting or receiving

contributions from foreign sources. - It

shall be unlawful for any person, including a

political party or public or private entity to

solicit or receive, directly or indirectly, any aid

or contribution of whatever form or nature

from any foreign national, government or

entity for the purposes of influencing the

results of the election.

7. Prohibited fund raising –

Section 97, BP 881. Prohibited raising of

funds. - It shall be unlawful for any person to

hold dances, lotteries, cockfights, games,

boxing bouts, bingo, beauty contests,

entertainments, or cinematographic,

theatrical or other performances for the

purpose of raising funds for an election

campaign or for the support of any candidate

from the commencement of the election

period up to and including election day; or for

any person or organization, whether civic or

religious, directly or indirectly, to solicit

and/or accept from any candidate for public

office, or from his campaign manager, agent

or representative, or any person acting in

their behalf, any gift, food, transportation,

contribution or donation in cash or in kind

from the commencement of the election

period up to and including election day;

Provided, That normal and customary

religious stipends, tithes, or collections on

Sundays and/or other designated collection

days, are excluded from this prohibition.

8. Prohibited election propaganda –

Section 85, BP 881. Prohibited forms of

election propaganda. –

Note: Enumeration is purposely omitted

because it is already expressly repealed by RA

9006.

Note: The prohibition against certain forms of election propaganda is intended to prevent the perversion and prostitution of the electoral apparatus, and the denial of due process of law. It is a valid exercise of police power (Badoy vs. COMELEC, 35 SCRA 285). But this evil does not obtain in a plebiscite because in a plebiscite, the electorate is asked to vote for or against issues, not candidates (Sanidad vs. COMELEC, 181 SCRA 529).


Lawful Election Propaganda

Section 3, RA 9006. Lawful Election

Propaganda. – Election propaganda,

whether on television, cable television, radio,

newspapers or any other medium is hereby

allowed for all registered political parties,

national, regional, sectoral parties or

organizations participating under the party list

elections and for all bona fide candidates

seeking national and local elective positions

subject to the limitation on authorized

expenses of candidates and political parties,

observance of truth in advertising and to the

supervision and regulation by the Commission on Elections (COMELEC).

For the purpose of this Act, lawful election propaganda shall include:

3.1. Pamphlets, leaflets, cards, decals,

stickers or other written or printed materials

the size of which does not exceed eight and

one half inches in width and fourteen inches

in length;

3.2. Handwritten or printed letters urging

voters to vote for or against any particular political party or candidate for public office;

3.3. Cloth, paper or cardboard posters,

whether framed or posted, with an area not

exceeding two (2) feet by three (3) feet,

except that, at the site and on the occasion of

a public meeting or rally, or in announcing the

holding of said meeting or rally, streamers

not exceeding three (3) feet by eight (8) feet

in size, shall be allowed: Provided, That said

streamers may be displayed five (5) days

before the date of the meeting or rally and

shall be removed within twenty-four (24) hours after said meeting or rally;

3.4. Paid advertisements in print or broadcast

media: Provided, That the advertisements

shall follow the requirements set forth in Section 4 of this Act; and

3.5. All other forms of election propaganda

not prohibited by the Omnibus Election Code or this Act.

Under the Fair Election Act i. Print Ads – not exceeding ¼ page in

tabloids thrice a week per newspaper,

magazine or other publication during the campaign period.

ii. Broadcast Media – a. National positions: 120 minutes for TV

and 180 minutes for radio, whether by purchase or donation.

b. Local positions: 60 minutes for TV and 90 minutes for radio, whether by purchase or donation.

Common Poster Areas

Section 9, RA 9006. Posting of Campaign

Materials. – The COMELEC may authorize

political parties and party-list groups to erect

common poster areas for their candidates in

not more than ten (1) public places such as

plazas, markets, barangay centers and the

like, wherein candidates can post, display or

exhibit election propaganda: Provided, That

the size of the poster areas shall not exceed

twelve (12) by sixteen (16) feet or its equivalent.

Independent candidates with no political

parties may likewise be authorized to erect

common poster areas in not more than ten

(10) public places, the size of which shall not

exceed four (4) by six (6) feet or its

equivalent.

Candidates may post any lawful propaganda

material in private places with the consent of

the owner thereof, and in public places or

property which shall be allocated equitably

and impartially among the candidates.

9. Prohibition against removal, destruction or

defacement of lawful election propaganda –

Section 83, BP 881. Removal, destruction

or defacement of lawful election

propaganda prohibited. - It shall be

unlawful for any person during the campaign

period to remove, destroy, obliterate, or in

any manner deface or tamper with, or

prevent the distribution of lawful election

propaganda.

Election Survey The SC held that sec. 5.4 of the Fair Election Act prohibiting publication of survey results 15 days


immediately preceding a national election and 7 days before a local election violates the constitutional rights of speech, expression and the press because – 1) It imposes a prior restraint on the freedom of

expression; 2) It is a direct and total suppression of a category

of expression even though such suppression is only for a limited period;

3) The governmental interest sought to be promoted can be achieved by means other that the suppression of the freedom of expression (SWS vs. COMELEC, GR No. 147571, May 5, 2001).

Exit Polls Exit polls and the dissemination of their results through mass media constitute part of the freedom of speech and of the press. Hence, the COMELEC cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections (ABS-CBN vs. COMELEC, GR No. 133486, Jan. 28, 2000).

Section 88, BP 881. Public rally. - Any

political party or candidate shall notify the

election registrar concerned of any public rally

said political party or candidate intends to

organize and hold in the city or municipality,

and within seven working days thereafter

submit to the election registrar a statement of

expenses incurred in connection therewith.

Limitations on Expenses: lawful expenditures:

Section 13, RA 7166. Authorized Expenses

of Candidates and Political Parties. - The

agreement amount that a candidate or

registered political party may spend for election campaign shall be as follows:

(a) For candidates. - Ten pesos (P10.00)

for President and Vice-President; and for

other candidates Three Pesos (P3.00) for

every voter currently registered in the

constituency where he filed his certificate of

candidacy: Provided, That a candidate

without any political party and without

support from any political party may be

allowed to spend Five Pesos (P5.00) for every such voter; and

(b) For political parties. - Five pesos

(P5.00) for every voter currently registered

in the constituency or constituencies where it has official candidates.

Any provision of law to the contrary

notwithstanding any contribution in cash or in

kind to any candidate or political party or

coalition of parties for campaign purposes,

duly reported to the Commission shall not be

subject to the payment of any gift tax.

Statement of contributions and expenses

Section 14, RA 7166. Statement of

Contributions and Expenditures: Effect of

Failure to File Statement. - Every

candidate and treasurer of the political party

shall, within thirty (30) days after the day of

the election, file in duplicate with the offices

of the Commission the full, true and itemized

statement of all contributions and expenditures in connection with the election.

No person elected to any public offices shall

enter upon the duties of his office until he has

filed the statement of contributions and expenditures herein required.

The same prohibition shall apply if the

political party which nominated the winning

candidate fails to file the statement required

herein within the period prescribed by this Act.

Except candidates for elective barangay

office, failure to file the statements or reports

in connection with electoral contributions and

expenditures are required herein shall

constitute an administrative offense for which

the offenders shall be liable to pay an

administrative fine ranging from One

thousand pesos (P1,000.00) to Thirty

thousand pesos (P30,000.00), in the

discretion of the Commission.

The fine shall be paid within thirty (30) days

from receipt of notice of such failure;

otherwise, it shall be enforceable by a writ of

execution issued by the Commission against

the properties of the offender.

It shall be the duty of every city or municipal

election registrar to advise in writing, by

personal delivery or registered mail, within

five (5) days from the date of election all


candidates residing in his jurisdiction to

comply with their obligation to file their

statements of contributions and expenditures.

For the commission of a second or

subsequent offense under this section, the

administrative fine shall be from Two

thousand pesos (P2,000.00) to Sixty

thousand pesos (P60,000.00), in the

discretion of the Commission. In addition, the

offender shall be subject to perpetual

disqualification to hold public office.

Note: The requirement to file the statement covers even those who withdraw as candidates after having filed their COCs, because sec. 14, of RA 7166, does not make any distinction (Pilar vs. COMELEC, 245 SCRA 759).

BOARD OF ELECTION INSPECTORS [BEI];

WATCHERS

…………………………………………………

Section 13, RA 6646. Board of Election

Inspectors. - The board of election

inspectors to be constituted by the

Commission under Section 164 of Batas

Pambansa Blg. 881 shall be composed of a

chairman and two (2) members, one of whom

shall be designated as poll clerk, all of whom

shall be public school teachers, giving

preference to those with permanent

appointments.

In case there are not enough public school

teachers, teachers in private schools,

employees in the civil service, or other

citizens of known probity and competence

who are registered voters of the city or

municipality may be appointed for election

duty.

Section 166, BP 881. Qualification of

members of the board of election

inspectors. - No person shall be appointed

chairman, member or substitute member of

the board of election inspectors unless he is

of good moral character and irreproachable

reputation, a registered voter of the city or

municipality, has never been convicted of any

election offense or of any other crime

punishable by more than six months of

imprisonment, or if he has pending against

him an information for any election offense.

He must be able to speak and write English or

the local dialect.

Note: Under sec. 3, RA 9369 [The Amended Automated Elections Systems Law], at least one member of the BEI shall be an information technology-capable person, trained and certified by the DOST to use the AES.

Section 167, BP 881. Disqualification. -

No person shall serve as chairman or member

of the board of election inspectors if he is

related within the fourth civil degree of

consanguinity or affinity to any member of

the board of election inspectors or to any

candidate to be voted for in the polling place

or his spouse.

Section 173, BP 881. Prohibition of

political activity. - No member of the board

of election inspectors shall engage in any

partisan political activity or take part in the

election except to discharge his duties as such

and to vote.

Section 169, BP 189. Voting privilege of

members of board of election inspectors.

- Members of the board of election inspectors

and their substitutes may vote in the polling

place where they are assigned on election

day: Provided, That they are registered voters

within the province, city or municipality where

they are assigned: and Provided, finally, That

their voting in the polling places where they

are not registered voters be noted in the

minutes of the board of election inspectors.

Local Absentee Voting: Voting Privilege of the Members of the BEI Members of the BEI who are registered voters in precincts other than where they are assigned, may avail of the Local Absentee Voting, or on the day of the elections, vote in the precincts where they are registered, provided that they do so when the voting in their respective places of assignments is light, and their absence shall not be for more than 30 minutes. For this purpose, they shall schedule their voting so that only one member of the BEI shall leave at any one time (Sec. 12, COMELEC Resolution No. 8786,


March 4, 2010, as amended by Resolution No. 8798). Voting Privilege of the Special Board of Election Inspectors [SBEI] for Detainee Voting Member of the SBEI who are not availing of the Local Absentee Voting may, on election day, vote in the precincts where they are registered, provided that their absence in the special polling place shall no be more than 30 minutes and they shall schedule their voting so that only one member of the SBEI shall leave at any one time (Sec. 20, COMELEC Resolution No. 8811).

Section 168, BP 881. Powers of the board

of election inspectors. - The board of

election inspectors shall have the following

powers and functions:

a. Conduct the voting and counting of

votes in their respective polling places;

b. Act as deputies of the Commission in

the supervision and control of the election

in the polling places wherein they are

assigned, to assure the holding of the

same in a free, orderly and honest

manner; and

c. Perform such other functions prescribed

by this Code or by the rules and

regulations promulgated by the

Commission.

Other Duties (Resolution 9640) a. Print the Election Returns [ERs] and

transmit electronically the election results, through the use of the PCOS machine to the –

i. City/Municipal Board of Canvassers; ii. Dominant majority party; iii. Dominant minority party; iv. Accredited citizen’s arm and KBP;

and v. To the central server (COMELEC

Resolution No. 8739).

b. Maintain order within the polling place and its premises to keep access thereto open and unobstructed and to enforce obedience to its lawful orders.

c. Furnish watchers Certificate of Votes.

Section 172, BP 881. Proceedings of the

board of election inspectors. - The

meetings of the board of election inspectors

shall be public and shall be held only in the

polling place authorized by the Commission.

The board of election inspectors shall have

full authority to maintain order within the

polling place and its premises, to keep access

thereto open and unobstructed, and to

enforce obedience to its lawful orders. If any

person shall refuse to obey lawful orders of

the board of election inspectors, or shall

conduct himself in a disorderly manner in its

presence or within its hearing and thereby

interrupt or disturb its proceedings, the board

of election inspectors may issue an order in

writing directing any peace officer to take

such person into custody until the

adjournment of the meeting, but such order

shall not be executed as to prevent any

person so taken into custody from exercising

his right to vote. Such order shall be executed

by any peace officer to whom it may be

delivered, but if none be present, by any

other person deputized by the board of

election inspectors in writing.

Section 174, BP 881. Functioning of the

board of election inspectors.- The board of

election inspectors shall act through its

chairman, and shall decide without delay by

majority vote all questions which may arise in

the performance of its duties.

Section 177, BP 881. Arrest of absent

members. - The member or members of the

board of election inspectors present may

order the arrest of any other member or

substitute thereof, who in their judgment, has

absented himself with intention of obstructing

the performance of duties of the board of

election inspectors.

COMMENT: This provision may be of doubtful validity in view of the sec. 2, Art. III of the Bill of Rights, requiring that only a judge, as a rule may issue a warrant of arrest in relation, also, to the case of Salazar vs. Achacoso, 183 SCRA 145.


WATCHERS

Official watchers of candidates. - Every

registered political party or coalition of

political parties, and every candidate shall

each be entitled to one watcher in every

polling place and canvassing center. Provided

that, candidates for the Sangguniang

Panlalawigan, Sangguniang Panlunsonsod, or

Sangguniang Bayan belonging to the same

slate or ticket shall collectively be entitled to

only one watcher (sec. 34, RA 9369,

amending sec. 26 of RA 7166).

Note: Sec. 34, RA 9369 fixes the per diem of all dominant majority and minority parties to 400 pesos. The SC upheld the validity of such provision and pronounced such regulation of per diem of poll watchers as promoting the general welfare of the community, hence a valid exercise of police power (BANAT Party-List vs. COMELEC, GR No. 177508, Aug. 7, 2009). Qualifications: No person shall be appointed watcher unless he is – 1. a qualified voter of the city or municipality, 2. of good reputation and 3. shall not have been convicted by final judgment

of any election offense or of any other crime, 4. must know how to read and write Filipino,

English, Spanish or any of the prevailing local dialects, and

5. not related within the fourth civil degree of consanguinity or affinity to the chairman or any member of the board of election inspectors in the polling place where he seeks appointment as a watcher.

Section 179, BP 881. Rights and duties of

watchers. – (Note: 1st par. is omitted)

1. The watchers shall have the right to stay

in the space reserved for them inside the

polling place.

2. They shall have the right to witness and

inform themselves of the proceedings of

the board of election inspectors, including

its proceedings during the registration of

voters,

3. to take notes of what they may see or

hear,

4. to take photographs of the proceedings

and incidents, if any, during the counting

of votes, as well as of election returns,

tally boards and ballot boxes,

5. to file a protest against any irregularity or

violation of law which they believe may

have been committed by the board of

election inspectors or by any of its

members or by any persons,

6. to obtain from the board of election

inspectors a certificate as to the filing of

such protest and/or of the resolution

thereon,

7. to read the ballots after they shall have

been read by the chairman, as well as the

election returns after they shall have been

completed and signed by the members of

the board of election inspectors without

touching them, but they shall not speak to

any member of the board of election

inspectors, or to any voter, or among

themselves, in such a manner as would

distract the proceedings, and

8. to be furnished with a certificate of the

number of votes in words and figures cast

for each candidate, duly signed and

thumbmarked by the chairman and all the

members of the board of election

inspectors. Refusal of the chairman and

the members of the board of election

inspectors to sign and furnish such

certificate shall constitute an election

offense and shall be penalized under this

Code (Note: provision is modified for

memory recall purpose).

Section 176, BP 881. Temporary

designation of members of the board of

election inspectors by watchers. - If at

the time the board of election inspectors must

meet, all the positions in the board of election

inspectors are vacant, or if not one of the

appointed members shall appear, the

watchers present may designate voters of the

polling place to act in the place of said

members until the absentees shall appear or

the vacancies are filled.

Section 180, BP 881. Other watchers. -

The duly accredited citizens arm of the

Commission shall be entitled to appoint a

watcher in every polling place. Other civic,


religious, professional, business, service,

youth and any other similar organizations,

with prior authority of the Commission, shall

be entitled collectively to appoint one watcher

in every polling place.

PRECINCTS AND POLLING PLACES

…………………………………………………

Section 149, BP 881. Precincts and their

establishment. - The unit of territory for the

purpose of voting is the election precinct, and

every barangay as of the approval of this Act

shall have at least one such precinct.

The Commission shall establish all election

precincts.

The precincts actually established in the

preceding regular election shall be

maintained, but the Commission may

introduce such adjustments, changes or new

divisions or abolish them, if necessary:

Provided, however, That the territory

comprising an election precinct shall not be

altered or a new precinct established within

forty-five days before a regular election and

thirty days before a special election or a

referendum or plebiscite.

Section 8, RA 7166. Precincts and their

Establishment. - Any provision of law to the

contrary notwithstanding, where it is not

practicable to divide the precinct by territory,

the Commission may adjust or split the

precinct by assigning the registered voters

therein alphabetically and equitably among

the adjusted or split precincts: Provided,

That, the polling places of said precincts shall

be in the same building or premises.

The established precincts will be clustered into groups of 3 but not exceeding 7 precincts taking into account the equitable distribution of the number of registered voters per precinct and the aggregate number of registered voters in the clustered/grouped precincts shall not exceed 1,000 (COMELEC, Resolution No. 8699).

Section 152, BP 881. Polling place. - A

polling place is the building or place where

the board of election inspectors conducts its

proceedings and where the voters shall cast

their votes.

Section 42, BP 881. Polling places. - (1) The

chairman of the board of election tellers shall

designate the public school or any other

public building within the barangay to be used

as polling place in case the barangay has one

election precinct. (2) For barangays with two

or more election precincts the chairman of the

board of canvassers shall designate the public

school or any other public building to be used

as polling place.

In case there is no public school or other

public building that can be used as polling

places, other appropriate private buildings

may be designated: Provided, That such

buildings are not owned or occupied or

possessed by any incumbent elective public

official or candidate, or his relative within the

fourth civil degree of consanguinity or affinity.

The polling place shall be centrally located as

possible, always taking into consideration the

convenience and safety of the voters.

Note: Under Sec. 42 of the Omnibus Election Code (OEC), the election should be held at the public school building or any other public building within the barangay. In the case at bar, not only was the election held in a residence of a private person but also that it was held outside of the barangay. Another thing, Sec. 190 of the OEC provides that the casting of votes shall start at 7:00 A.M. and shall end at 3:00 P. M (but until 7 PM in the automated elections). In the case at bar, the election was held from 9:00 P. M. until the wee hours of the following day. Hence, the election officer practically postponed the election which he did not have the competence. Only the Comelec has the legal authority to exercise such power. Moreover, the election officer did not conduct any proceeding. The announcement at the mosque at the late hour did not constitute sufficient notice to the electorate. (Basher vs. Comelec, 330 SCRA 736).

Section 153, BP 881. Designation of polling

places. - The location of polling places

designated in the preceding regular election

shall continue with such changes as the


Commission may find necessary, after notice

to registered political parties and candidates

in the political unit affected, if any, and

hearing: Provided, That no location shall be

changed within forty-five days before a

regular election and thirty days before a

special election or a referendum or plebiscite,

except in case it is destroyed or it cannot be

used.

Section 154, BP 881. Requirements for

polling places. - Each polling place shall be,

as far as practicable, a ground floor and shall

be of sufficient size to admit and comfortably

accommodate forty voters at one time outside

the guard rail for the board of election

inspectors. The polling place shall be located

within the territory of the precinct as centrally

as possible with respect to the residence of

the voters therein and whenever possible,

such location shall be along a public road. No

designation of polling places shall be changed

except upon written petition of the majority of

the voters of the precinct or agreement of all

the political parties or by resolution of the

Commission upon prior notice and hearing.

A public building having the requirements

prescribed in the preceding paragraph shall

be preferred as polling place.

Note: The transfer of a polling place without notice given to candidates and registered voters in violation of due process provided under the Election Code (Cawasa vs. COMELEC, GR No. 150469, July 3, 2002).

Section 155, BP 881. Building that shall not

be used as polling places. - No polling

place shall be located in a public or private

building owned, leased, or occupied by any

candidate or of any person who is related to

any candidate within the fourth civil degree of

consanguinity or affinity, or any officer of the

government or leader of any political party,

group or faction, nor in any building or

surrounding premises under the actual control

of a private entity, political party or religious

organization. In places where no suitable

public building is available, private school

buildings may be used as polling places. No

polling place shall be located within the

perimeter of or inside a military or police

camp or reservation or within a prison

compound.

In E.M. No. 09-005, the CHR filed a petition with the COMELEC to allow the establishment of special polling stations inside jail facilities with at least 100 registered voters and escorted voting for jail prison facilities with less than a hundred voters. The CHR argued that section 155 of the Omnibus Election Code that prohibits the establishment of polling places inside ―prison compounds‖ does not really pose a legal impediment. It stated that the term ―prison compound‖ refers to facilities with convicted prisoners like national penitentiaries and it is different from jails which are detention facilities housing detention prisoners. The COMELEC en banc granted the petition (San Beda Law Journal Vo. No. XLVIII).

Any registered voter, candidate or political

party may petition the Commission not later

than thirty days before the first registration

day for the transfer of the polling place from

the prohibited buildings provided herein. Such

petition shall be heard and decided by the

Commission within twenty days from the filing

of the petition. Failure to effect the transfer of

the polling place after the Commission found

it to be located in violation of this section

within the period prescribed herein shall be a

ground for the postponement of the election

in the polling place concerned.

CASTING and CANVASSING OF VOTES

…………………………………………

Outline of the Procedure for the Casting of Votes (COMELEC Resolution No. 8739)

Preliminary Procedures

Installation of the PCOS Machine

Initialization of the PCOS Machine


Obtain Ballots/Identity Verification

Announcement by the Chairman of the voter’s

name

Voter shall cast his vote

Insertion of the Ballot into the PCOS Machine

Section 190, OEC. Voting hours. - The

casting of votes shall start at seven o'clock in

the morning and shall end at seven o'clock in

the evening of Election Day.

If at seven o’clock in the evening there are

still voters present within thirty meters in

front of the polling place who have not yet

cast their votes, in which case the voting shall

continue but only to allow said voters to cast

their votes without interruption. The poll clerk

shall, without delay, prepare a complete list

containing the names of said voters

consecutively numbered, and the voters so

listed shall be called to vote by announcing

each name repeatedly three times in the

order in which they are listed. Any voter in

the list who is not present when his name is

called out shall not be permitted to vote.

(Sec. 30, COMELEC Resolution 9640).

Preliminary Procedures

Prior to the actual voting, the BEI shall: 1. Show to the pubic and the watchers present that

the – a. PCOS box is sealed; Check PCOS box

serial numbers. b. Ballot box is locked and empty; and c. Package of official ballots and the Book of

Voters are duly sealed, and thereafter, break the seals.

2. Count the ballots manually. Enter in the Minutes

the number of ballots; and the fact that the PCOS box, package ballots and the Book of Voters where show to the public with the seals intact.

3. Remove the seal of the PCOS box, retrieve the PCOS from the box and show that the seals of the printer cover, main memory card slot and

back-up memory card slot of the PCOS are intact.

4. Record in the Minutes such fact and thereafter break the seal of the printer cover. The main memory card slot and the back-up memory card slot shall remain sealed during the voting.

Obtain Ballots/Identity Verification Means: Precinct Computerized Voters List (PCVL) and Election Day Computerized Voters List (EDVCL) and proof of voter’s identity. Only voters listed in the EDVCL shall be allowed

to vote. In case any member of the BEI doubts the identity of the voter, the BEI shall check his voter’s ID card.

GR: Voter’s identity may likewise be established by any authentic document. Exceptions: Barangay Certificate and Community Tax Certificate. Announcement by the Chairman of the voter’s name 1. Announcement of authenticated voter’s name. 2. Voter shall affix his signature in the voting

record. 3. Chairman shall enter the number of the ballot in

the voting record and deliver to the voter one ballot correctly folded.

Procedure for Rejected Ballots by the PCOS Machine 1. The Chairman shall distinctly mark the back of

the ballot as ―Rejected.‖ 2. The Chairman shall require all member of the

Board to sign at the back of the ballot. 3. The rejected ballot shall be placed inside the

Envelope for Rejected Ballots.

No replacement ballot shall be issued.

Any party objecting to the rejection of the ballot shall reduce his objection in writing, which the Board shall attach and note in the Minutes.

Section 192, OEC. Persons allowed in and

around the polling place. - During the

voting, no person shall be allowed inside the

polling place, except the members of the

board of election inspectors, the watchers,

the representatives of the Commission, the

voters casting their votes, the voters waiting

for their turn to get inside the booths whose

number shall not exceed twice the number of

booths and the voters waiting for their turn to

cast their votes whose number shall not

exceed twenty at any one time. The watchers


shall stay only in the space reserved for

them, it being illegal for them to enter places

reserved for the voters or for the board of

election inspectors or to mingle and talk with

the voters within the polling place.

It shall be unlawful for any officer or member

of the Armed Forces of the Philippines

including the Philippine Constabulary or the

Integrated National Police or peace officer or

any armed person belonging to any extra-

legal police agency, special forces, reaction

forces, strike forces, home defense units,

barangay tanod, or other similar forces or

para-military forces, including special forces,

security guards, special policeman, and all

other kinds of armed or unarmed extra-legal

police officers, to enter any polling place,

unless it is his polling place where he will vote

but in such case he should immediately leave

the polling place, no policeman or peace

officer shall be allowed to enter or stay inside

the polling place except when there is an

actual disturbance of the peace and order

therein. However, the board of election

inspectors upon majority vote, if it deems

necessary, may make a call in writing, duly

entered in the minutes, for the detail of a

policeman or any peace officer for their

protection or for the protection of the election

documents and paraphernalia, in which case,

the said policeman or peace officer shall stay

outside the polling place within a radius of

thirty meters near enough to be easily called

by the board of election inspectors at any

time, but never at the door, and in no case

shall the said policeman or peace officer hold

any conversation with any voter or disturb or

prevent or in any manner obstruct the free

access of the voters to the polling place. It

shall likewise be unlawful for any barangay

official to enter and stay inside any polling

place except to vote or except when serving

as a watcher or member of the board of

election inspectors, in which case, he shall

leave the polling place immediately after

voting.

Section 193, OEC. Order of voting. - The

voters shall vote in the order of their entrance

into the polling place. The voters shall have

the right to freely enter the polling place as

soon as they arrive unless there are voters

waiting inside, in which case they shall fall in

line in the order of their arrival and shall not

crowd around the table of the board of

election inspectors. The voters after having

cast their votes shall immediately depart.

Manner of Obtaining Ballots

(Just see sec. 46, Com. Res. No. 9640, if you

have the luxury of time)

sec. 39 Com. Res. No. 9640: Prohibition

on voting. – It shall be unlawful for a voter

to:

a) Bring the ballot, secrecy folder or marking

pen outside of the polling place;

b) Speak with anyone other than as herein

provided while inside the polling place;

c) Prepare his ballot without using the ballot

secrecy folder or exhibit its contents;

d) Fill his ballot accompanied by another,

except in the case of an illiterate or

person with disability;

e) Erase any printing from the ballot, or put

any distinguishing mark on the ballot;

f) Use carbon paper, paraffin papers or other

means of making a copy of the contents of

the ballot, or otherwise make use of any

other scheme to identify his vote,

including the use of communication

devices i.e. digital cameras, cellular

phones with camera or similar gadgets

while voting;

g) Intentionally tear of deface the ballot; and

h) Disrupt or attempt to disrupt the normal

operation of the PCOS.

Section 196, BP 881. Preparation of

ballots for illiterate and disabled

persons. - A voter who is illiterate or

physically unable to prepare the ballot by

himself may be assisted in the preparation of

his ballot by a relative, by affinity or

consanguinity within the fourth civil degree or


if he has none, by any person of his

confidence who belong to the same household

or any member of the board of election

inspectors, except the two party members:

Provided, That no voter shall be allowed to

vote as illiterate or physically disabled unless

it is so indicated in his registration record:

Provided, further, That in no case shall an

assistor assist more than three times except

the non-party members of the board of

election inspectors. The person thus chosen

shall prepare the ballot for the illiterate or

disabled voter inside the voting booth.

The person assisting shall bind himself in a

formal document under oath to fill out the

ballot strictly in accordance with the

instructions of the voter and not to reveal the

contents of the ballot prepared by him.

Violation of this provision shall constitute an

election offense.

Disabled or Illiterate Voters The voter who is illiterate or disabled shall not be deprived of his fundamental right of suffrage on such ground alone, illiterate or disabled individuals may be assisted in the preparation of the ballot by – a. A relative, by affinity or consanguinity within the

4th civil degree; or

b. If none, by any person of his confidence who belongs to the same household; or

c. Any member of the BEI (Sec. 30, COMELEC Resolution 8739).

Note: A voter may vote as an illiterate/disabled and be assisted by another person, provided it is indicated in his/her registration record that such person is illiterate or disabled, and that such appears in the EDVCL and VRR. All assistors must be of:

1. Of voting age [at least 18 years old]; 2. May assist only up to 3 times, except the

members of the BEI; 3. Must prepare the ballot in the presence of

the disabled or illiterate voter.

Voting. –

Manner of Voting: Just see sec. 47, Com.

Res. 9640.

sec. 32, Com. Res. No. 9640. Who may

vote: - All registered voters whose names

appear in the EDCVL may vote in the election,

unless their names are manually crossed out

from the EDCVL with the following

annotations, duly signed by the Election

Officer:

a) The voter has transferred to another

district/city/municipality; or

b) The voter has died.

Section 199, OEC. Challenge of illegal

voters. -

(a) Any voter, or watcher may challenge

any person offering to vote for not being

registered, for using the name of another or

suffering from existing disqualification.

In such case, the board of election

inspectors shall satisfy itself as to whether

or not the ground for the challenge is true

by requiring proof of registration or the

identity of the voter; and

(b) No voter shall be required to present his

voter's affidavit on election day unless his

identity is challenged. His failure or inability

to produce his voter's affidavit upon being

challenged, shall not preclude him from

voting if his identity be shown from the

photograph, fingerprints, or specimen

signatures in his approved application in the

book of voters or if he is identified under

oath by a member of the board of election

inspectors and such identification shall be

reflected in the minutes of the board.

Section 200, BP 881. Challenge based on

certain illegal acts. - Any voter or watcher

may challenge any voter offering to vote on

the ground that the challenged person has

received or expects to receive, has paid,

offered or promised to pay, has contributed,

offered or promised to contribute money or

anything of value as consideration for his vote

or for the vote of another; that he has made

or received a promise to influence the giving


or withholding of any such vote or that he has

made a bet or is interested directly or

indirectly in a bet which depends upon the

result of the election.

The challenged person shall take a prescribed

oath before the board of election inspectors

that he has not committed any of the acts

alleged in the challenge. Upon the taking of

such oath, the challenge shall be dismissed

and the challenged voter shall be allowed to

vote, but in case of his refusal to take such

oath, the challenge shall be sustained and he

shall not be allowed to vote.

Section 201, BP 881. Admission of

challenged vote immaterial in criminal

proceedings. - The admission of the

challenged vote under the two preceding

sections shall not be conclusive upon any

court as to the legality of the registration of

the voter challenged or his vote in a criminal

action against such person for illegal

registration or voting.

Sec. 43 Com. Res. 9640. Prohibition

against premature announcement of

voting. – During the voting, no member of

the BEI shall make any announcement as to

whether a certain registered voter has

already voted or not; as to how many have

already voted or how may so far have failed

to vote; or as to any other fact tending to

show or showing the state of the polls;

neither shall he make any statement at any

time, except as witness before a court or

body as to how many persons voted.

COUNTING OF VOTES

(Insert amendatory provision under RA

9369)

Manner of counting of votes Insert pertinent provision RA 9369- Jan. 23, 2007 For the counting of the ballots and transmission of results; Procedure: See sec. 51 Com. Res. No. 9640.

Rules of Appreciation of Ballots:

Note: These rules may not anymore be applicable in view of the automated elections using the PCOS machines. However, it may be applied in Barangay elections or in case of massive failure of automated election where manual elections may be resorted to as a last resort. For purposes of academic discussion, it is included in this work. Continuity Plan A list of contingency measures, and policies for the activation of such, that are put in place to ensure continuous operation of the AES. The AES shall be so designed to include a continuity plan in case of a system breakdown or any such eventuality which shall result in the delay, obstruction or non-performance of the electoral process (sec. 11, RA 9369). Section 211. Rules for the appreciation of

ballots. - In the reading and appreciation of

ballots, every ballot shall be presumed to be valid

unless there is clear and good reason to justify its

rejection. The board of election inspectors shall

observe the following rules, bearing in mind that

the object of the election is to obtain the

expression of the voter's will:

1. Where only the first name of a candidate or only

his surname is written, the vote for such candidate

is valid, if there is no other candidate with the

same first name or surname for the same office.

2. Where only the first name of a candidate is

written on the ballot, which when read, has a

sound similar to the surname of another candidate,

the vote shall be counted in favor of the candidate

with such surname. If there are two or more

candidates with the same full name, first name or

surname and one of them is the incumbent, and on

the ballot is written only such full name, first name

or surname, the vote shall be counted in favor of

the incumbent.

3. In case the candidate is a woman who uses her

maiden or married surname or both and there is

another candidate with the same surname, a ballot

bearing only such surname shall be counted in

favor of the candidate who is an incumbent.

4. When two or more words are written on the

same line on the ballot, all of which are the

surnames of two or more candidates, the same

shall not be counted for any of them, unless one is

a surname of an incumbent who has served for at


least one year in which case it shall be counted in

favor of the latter.

When two or more words are written on different

lines on the ballot all of which are the surnames of

two or more candidates bearing the same surname

for an office for which the law authorizes the

election of more than one and there are the same

number of such surnames written as there are

candidates with that surname, the vote shall be

counted in favor of all the candidates bearing the

surname.

5. When on the ballot is written a single word

which is the first name of a candidate and which is

at the same time the surname of his opponent, the

vote shall be counted in favor of the latter.

6. When two words are written on the ballot, one

of which is the first name of the candidate and the

other is the surname of his opponent, the vote

shall not be counted for either.

7. A name or surname incorrectly written which,

when read, has a sound similar to the name or

surname of a candidate when correctly written

shall be counted in his favor;

8. When a name of a candidate appears in a space

of the ballot for an office for which he is a

candidate and in another space for which he is not

a candidate, it shall be counted in his favor for the

office for which he is a candidate and the vote for

the office for which he is not a candidate shall be

considered as stray, except when it is used as a

means to identify the voter, in which case, the

whole ballot shall be void.

If the word or words written on the appropriate

blank on the ballot is the identical name or

surname or full name, as the case may be, of two

or more candidates for the same office none of

whom is an incumbent, the vote shall be counted

in favor of that candidate to whose ticket belong all

the other candidates voted for in the same ballot

for the same constituency.

9. When in a space in the ballot there appears a

name of a candidate that is erased and another

clearly written, the vote is valid for the latter.

10. The erroneous initial of the first name which

accompanies the correct surname of a candidate,

the erroneous initial of the surname accompanying

the correct first name of a candidate, or the

erroneous middle initial of the candidate shall not

annul the vote in favor of the latter.

11. The fact that there exists another person who

is not a candidate with the first name or surname

of a candidate shall not prevent the adjudication of

the vote of the latter.

12. Ballots which contain prefixes such as "Sr.",

"Mr.", "Datu", "Don", "Ginoo", "Hon.", "Gob." or

suffixes like "Hijo", "Jr.", "Segundo", are valid.

13. The use of the nicknames and appellations of

affection and friendship, if accompanied by the first

name or surname of the candidate, does not annul

such vote, except when they were used as a

means to identify the voter, in which case the

whole ballot is invalid: Provided, That if the

nickname used is unaccompanied by the name or

surname of a candidate and it is the one by which

he is generally or popularly known in the locality,

the name shall be counted in favor of said

candidate, if there is no other candidate for the

same office with the same nickname.

14. Any vote containing initials only or which is

illegible or which does not sufficiently identify the

candidate for whom it is intended shall be

considered as a stray vote but shall not invalidate

the whole ballot.

15. If on the ballot is correctly written the first

name of a candidate but with a different surname,

or the surname of the candidate is correctly written

but with different first name, the vote shall not be

counted in favor of any candidate having such first

name and/or surname but the ballot shall be

considered valid for other candidates.

16. Any ballot written with crayon, lead pencil, or

in ink, wholly or in part, shall be valid.

17. Where there are two or more candidates voted

for in an office for which the law authorizes the

election of only one, the vote shall not be counted

in favor of any of them, but this shall not affect the

validity of the other votes therein.

18. If the candidates voted for exceed the number

of those to be elected, the ballot is valid, but the

votes shall be counted only in favor of the

candidates whose names were firstly written by the

voter within the spaces provided for said office in

the ballot until the authorized number is covered.


19. Any vote in favor of a person who has not filed

a certificate of candidacy or in favor of a candidate

for an office for which he did not present himself

shall be considered as a stray vote but it shall not

invalidate the whole ballot.

20. Ballots containing the name of a candidate

printed and pasted on a blank space of the ballot

or affixed thereto through any mechanical process

are totally null and void.

21. Circles, crosses or lines put on the spaces on

which the voter has not voted shall be considered

as signs to indicate his desistance from voting and

shall not invalidate the ballot.

22. Unless it should clearly appear that they have

been deliberately put by the voter to serve as

identification marks, commas, dots, lines, or

hyphens between the first name and surname of a

candidate, or in other parts of the ballot, traces of

the letter "T", "J", and other similar ones, the first

letters or syllables of names which the voter does

not continue, the use of two or more kinds of

writing and unintentional or accidental flourishes,

strokes, or strains, shall not invalidate the ballot.

23. Any ballot which clearly appears to have been

filled by two distinct persons before it was

deposited in the ballot box during the voting is

totally null and void.

24. Any vote cast in favor of a candidate who has

been disqualified by final judgment shall be

considered as stray and shall not be counted but it

shall not invalidate the ballot.

25. Ballots wholly written in Arabic in localities

where it is of general use are valid. To read them,

the board of election inspectors may employ an

interpreter who shall take an oath that he shall

read the votes correctly.

26. The accidental tearing or perforation of a ballot

does not annul it.

27. Failure to remove the detachable coupon from

a ballot does not annul such ballot.

28. A vote for the President shall also be a vote for

the Vice-President running under the same ticket

of a political party, unless the voter votes for a

Vice-President who does not belong to such party.

Section 213.BP 881. Proclamation of the

result of the election in the polling place.

- Upon the completion of the election returns,

the chairman of the board of election

inspectors shall orally and publicly announce

the total number of votes received in the

election in the polling place by each and every

one of the candidates, stating their

corresponding office.

Section 215, BP 881. Board of election

inspectors to issue a certificate of the

number of votes polled by the candidates

for an office to the watchers. - After the

announcement of the results of the election

and before leaving the polling place, it shall

be the duty of the board of election inspectors

to issue a certificate of the number of the

votes received by a candidate upon request of

the watchers. All the members of the board of

election inspectors shall sign [and

thumbmarked] the certificate.

CANVASS AND PROCLAMATION

Canvassing Procedure in General

CONGRESS

COMELEC

Provincial Board of Canvassers [PBOC]

City/Municipality Board of Canvassers

[CBOC/MBOC]

Board of Election Inspectors [BEI]

See secs. 28-29, RA 7166.

Board of Canvassers – a ministerial body. It is enjoined by law to canvass all voted on election returns submitted to it in due form. Its powers are limited generally to the mechanical or mathematical function of ascertaining and declaring the apparent result of the election by adding or compiling the votes cast for each candidate as shown on the face of the returns before them, and then declaring or certifying the result so ascertained (Abes vs. COMELEC, GR No. L-28348, Dec. 15, 1967).


National Board of Canvassers 1. For Senators and Party-List Representatives

Composed of the chairman and members of the COMELEC, sitting en banc.

It shall canvass the results by consolidating the certificates of canvass electronically transmitted. Thereafter, the national board shall proclaim the winning candidates for senators and party-list representatives (Sec. 22, RA 9369).

2. For the President and Vice-President

Composed of the Senate and the House of Representatives in joint and public session.

The certificate of canvass for the president and the vice-president duly certified by the Board of Canvassers of each province or city shall be electronically transmitted to the Congress, directed to the president of the Senate.

Upon receipt of the certificate of canvass, the Senate president shall, not later than 30 days after the day of the election, open all the certificates in the presence of the Senate and the House of Representatives in a joint public session.

The Congress upon determination of the authenticity and due execution thereof in the manner provided by law, canvass all the results for the president and vice-president and thereafter, proclaimed the winning candidates (sec. 23, RA 9369).

Incase two or more shall have an equal and highest number of votes, one of them shall forthwith be chosen by a majority vote of all the members of Congress.

Note: Congress and the COMELEC en banc shall determine the authenticity and due execution of the certificate of canvass for the president and vice-president and senators and party-list, respectively, as accomplished and transmitted to it by the local boards of canvassers (sec. 37, RA 9369).

Local Board of Canvassers 1. Provincial BOC

i. Chairman: Provincial Election Supervisor or a senior lawyer in the Regional Office of the COMELEC;

ii. Vice-Chairman: Provincial Fiscal iii. Members:

a. Provincial Superintendent of Schools;

b. 1 representative from each of the ruling party and the dominant party in the

constituency concerned to be represented.

2. City BOC

i. Chairman: City Election Registrar or a lawyer of the COMELEC.

ii. Members: a. City Fiscal; b. Acting superintendent of

schools; c. 1 representative from each of

the ruling party and the dominant party entitled to be represented.

3. District BOC of Metro Manila i. Chairman: Lawyer of the COMELEC. ii. Members:

a. Ranking fiscal in the district; b. Most senior district school

supervisor to be appointed upon consultation of the DOJ and DepEd;

c. 1 representative from each of the ruling party and the dominant party in the constituency concerned.

4. Municipal BOC i. Chairman: Election Registrar of a lawyer

of the COMELEC. ii. Vice-Chairman: Municipal Treasurer. iii. Members:

a. Most senior district school supervisor or in his absence, a principal of school or the elementary school

b. Substitute members: Municipal administrator, municipal assessor, clerk of court nominated by the executive judge, or any other available appointive municipal officials.

5. For newly-created political subdivision

Sec. 221, par. [e], OEC. Board of canvassers

for newly created political subdivisions - the

Commission shall constitute a board of

canvassers and appoint the members thereof

for the first election in a newly created

province, city or municipality in case the

officials who shall act as members thereof

have not yet assumed their duties and

functions.


6. Regional Board of Canvassers for the ARMM.

The Regional Board of Canvassers in the

ARMM shall be composed of the Regional

Election Director of the ARMM or a lawyer of the

Commission as chairman; a representative of

equivalent rank from the Department of Justice,

as Vice-Chairman; and a representative,

likewise, of equivalent rank from the Department

of Education, as member- secretary. Sec. 7,

Com. Res. No. 9648).

Section 222, BP 881. Relationship with

candidates and other members. - The

chairman and the members of the board of

canvassers shall not be related within the

fourth civil degree of consanguinity or affinity

to any of the candidates whose votes will be

canvassed by said board, or to any member

of the same board.

Section 223, BP 881. Prohibition against

leaving official station. - During the period

beginning election day until the proclamation

of the winning candidates, no member or

substitute member of the different boards of

canvassers shall be transferred, assigned or

detailed outside of his official station, nor

shall he leave said station without prior

authority of the Commission.

Section 225, BP 881. Vote required. - A

majority vote of all the members of the board

of canvassers shall be necessary to render a

decision.

Section 226, OEC. Incapacity and

substitution of members of boards of

canvassers. - In case of non-availability,

absence, disqualification due to relationship,

or incapacity for any cause of the chairman,

the Commission shall designate the provincial

or city fiscal to act as chairman. Likewise, in

case of non-availability, absence,

disqualification due to relationship, or

incapacity for any cause, of such designee,

the next ranking provincial or city fiscal shall

be designated by the Commission and such

designation shall pass to the next in rank until

the designee qualifies. With respect to the

other members of the board of canvassers,

the Commission shall appoint as substitute

the provincial, city or municipal officers of

other government agencies in the province,

city or municipality, as the case may be, and

with respect to the representatives of the

accredited political parties, the Commission

shall appoint as substitutes those nominated

by the said political parties.

Section 227, BP 881. Supervision and

control over board of canvassers. - The

Commission shall have direct control and

supervision over the board of canvassers.

Any member of the board of canvassers may,

at any time, be relieved for cause and

substituted motu proprio by the Commission.

sec. 19, Com. Res. No. 9648. Powers and

Functions of the Board. The Board shall

have full authority to keep order within the

canvassing room or hall including its premises

and enforce obedience to its lawful orders. If

any person shall refuse to obey any lawful

order of the Board or shall so conduct himself

in such disorderly manner as to disturb or

interrupt its proceedings, the Board may

order in writing any peace officer/soldier to

take such person into custody until the

adjournment of the meeting. in the absence

of any peace officer, any other competent and

able person deputized by the Board in writing,

may execute such order.

Further, the Board shall:

a) canvass/consolidate the electronically

transmitted results;

b) generate and print the COC, COCP and

SOV;

c) electronically transmit the result;

d) proclaim the winning candidates;

e) perform such other function as may be

directed by the Commission.


Canvass by the Board

sec. 12, Com. Res. 9648. Convening of

the Boards. The Boards shall convene at 6:

00 o’clock in the evening (of May 13, 2013) at

the designated place to initialize the CCS and

to receive and canvass the electronically

transmitted election returns (ERs) or the

certificates of canvass (COCs), as the case

may be. It shall meet continuously from day

to day until the canvass is completed, and

may adjourn but only for the purpose of

awaiting the other ERs/COCs.

NATURE OF THE PROCEEDINGS: Canvass proceedings are administrative and summary in nature. Where it has bee duly determined by the COMELEC that actual voting and election by the registered voters had taken place, the election returns cannot be disregarded and excluded – with the corresponding disenfranchisement of voters – but must be accorded prima facie status as bona fide reports of the result of the voting for canvassing and proclamation purposes. The summary nature of the proceedings requires that the written objection to the returns be filed only during this stage, because it is only at this time that the inclusion or exclusion of any return is in issue (GAD vs. COMELEC, 150 SCRA 665).

Sec. 20, Com. Res. No. 9648. Right to be

resent and to counsel during the

canvass. Each registered political party, or

coalition of political parties fielding

candidates, accredited political parties,

sectoral party/organization or coalition

thereof participating under the party-list

system and every candidate has the right to

be present and to counsel during the

consolidation/canvass of the ERs or COCs, as

the case may be: Provided, that only one

counsel may argue for each party or

candidate. They shall have the right to

observe the consolidation/canvass and

transmission, or ERs or COCs without

touching the CCS, make observations

thereon, and file their challenge in accordance

with the rules and regulations of the

Commission. The Board shall not allow any

dilatory action.

Sec. 21, Com. Res. No. 9648. Watchers.

Each registered political party, or coalition of

political parties fielding candidates, accredited

political parties, sectoral party/organization or

coalition thereof participating under the

party-list system and every candidate, shall

be entitled to one watcher in every

canvassing center. Provided, that the

candidates for the Sangguniang Bayan,

Sangguniang Panlungsod, or Sangguniang

Panlalawigan, ARMM Legislative Assembly,

belonging to the same slate or ticket shall

collectively be entitled to only one watcher.

The dominant majority party and dominant

minority party, which the Commission shall

determine in accordance with law, shall each

be entitled to one official watcher.

There shall also be recognized six principal

watchers representing the six accredited

major political parties excluding the dominant

majority and minority parties, who shall be

designated by the Commission upon

nomination of the said parties.

The citizens’ arm accredited by the

Commission, and civic, religious, professional,

business, service, youth and other similar

organizations shall collectively, with prior

authority of the Commission, be entitled to

two watchers to serve alternately.

A person convicted by final judgment of any

election offense or of any other crime or

related to any member of a Board within the

fourth civil degree of consanguinity or affinity

shall not be appointed as watchers.

A watcher must know how to read and write

Filipino, English or any of the prevailing local

dialects.

Under no circumstance shall barangay officials

including barangay tanods be appointed as

watchers.

The watchers shall have the right to:

a) Be present at, and take not of, all the

proceedings of the Board;

b) Stay behind the Chairman of the Board

near enough to be able to observe the

consolidation/canvass of the ERs/COCs

without touching the CCS; and

c) File protest against any irregularity

noted in the consolidation/canvass of

the ERs/COCs and obtain from the

Board a resolution thereon in writing.


Watchers shall not be allowed to participate in

the deliberation of the Board.

Section 232, BP 881. Persons not allowed

inside the canvassing room. - It shall be

unlawful for any officer or member of the

Armed Forces of the Philippines, including the

Philippine Constabulary, or the Integrated

National Police or any peace officer or any

armed or unarmed persons belonging to an

extra-legal police agency, special forces,

reaction forces, strike forces, home defense

forces, barangay self-defense units, barangay

tanod, or of any member of the security or

police organizations of government ministries,

commissions, councils, bureaus, offices,

instrumentalities, or government-owned or

controlled corporations or their subsidiaries or

of any member of a privately owned or

operated security, investigative, protective or

intelligence agency performing identical or

similar functions to enter the room where the

canvassing of the election returns are held by

the board of canvassers and within a radius of

fifty meters from such room: Provided,

however, That the board of canvassers by a

majority vote, if it deems necessary, may

make a call in writing for the detail of

policemen or any peace officers for their

protection or for the protection of the election

documents and paraphernalia in the

possession of the board, or for the

maintenance of peace and order, in which

case said policemen or peace officers, who

shall be in proper uniform, shall stay outside

the room within a radius of thirty meters near

enough to be easily called by the board of

canvassers at any time.

Procedures for Canvassing/Consolidation

See Article III (secs. 27 and 28), Com.

Res. 9648.

Section 233, OEC. When the election

returns are delayed, lost or destroyed. -

In case its copy of the election returns is

missing, the board of canvassers shall, by

messenger or otherwise, obtain such missing

election returns from the board of election

inspectors concerned, or if said returns have

been lost or destroyed, the board of

canvassers, upon prior authority of the

Commission, may use any of the authentic

copies of said election returns or a certified

copy of said election returns issued by the

Commission, and forthwith direct its

representative to investigate the case and

immediately report the matter to the

Commission.

The board of canvassers, notwithstanding the

fact that not all the election returns have

been received by it, may terminate the

canvass and proclaim the candidates elected

on the basis of the available election returns if

the missing election returns will not affect the

results of the election.

Sec. 25, Com. Res. No. 9648. Issues that

may be raised during the

consolidation/canvass. Issues affecting the

composition or proceedings of the Boards

may be initiated by filing a verified petition

before the Board or directly with the

Commission.

If the petition is filed directly with the Board,

its decision may be appealed to the

Commission within three (3) days from the

issuance thereof. However, if commenced

directly with the Commission, the verified

petition shall be filed immediately when the

Board begins to act illegally, or at the time of

the appointment of the member of the Board

whose capacity to sit as such is objected to.

There shall be no pre-proclamation cases on

issues/controversies relating to the

generation/printing, transmission, receipt and

custody and appreciation of ERs or the COCs.

Proclamation of the Winning Candidates

(sec. 28 [n], Com. Res. No. 9648).


A candidate who obtained the highest number

of votes shall be proclaimed by the Board,

except for the following:

1. In case the certificated of candidacy of the

candidate who obtains the highest number

of votes has been cancelled or denied due

course by a final and executory decision

or resolution, the votes cast for such

candidate shall be considered stray,

hence, the Board shall proceed to

proclaim the candidate who obtains the

second highest of number of votes,

provided, the latter’s certificate of

candidacy has not likewise been cancelled

by a final and executory decision or

resolution;

2. in case a candidate has been declared a

nuisance candidate by final and executory

decision or resolution, the votes cast for

the nuisance candidate shall be added to

the candidate who shares the same

surname as the nuisance candidate and

thereafter, the candidate who garnered

the highest number of votes shall be

proclaimed;

In case of two or more candidates having

the same surnames as the nuisance

candidate, the votes cast for the nuisance

candidate shall be considered as stray

votes and shall not be credited to any

candidate

In case the nuisance candidate does not

have the same surname as any candidate

for the same position, the votes cast for

the nuisance candidate shall be considered

as stray votes; and

3. In case a candidate has been disqualified

by a final and executory decision or

resolution and he obtains the highest

number of votes cast for a particular

position, the Board shall not proclaim the

candidate and the rule of succession, if

allowed by law shall be observed. In case

the position does not allow the rule of

succession under RA 7160, the position

shall be deemed vacant.

In all cases, a decision or resolution is

deemed final and executory if, in case of a

Division ruling, no motion for

reconsideration is filed within the

reglementary period, or in cases of the

ruling of the Commission En Banc, no

restraining order was issued by the

Supreme Court within five (5) days from

receipt of the decision or resolution.

In cases where a petition to deny due

course or cancel a certificated of

candidacy, declare a nuisance candidate,

or disqualification remains pending with

the Commission on the day of canvassing

and no order of suspension of

proclamation is issued by the Commission

En Banc or Division where said petition is

pending, the Board shall proceed to

proclaim the winner.

In cases where the generated/printed

COCP does not reflect the true winner for

a particular position by reason of the

circumstances stated above, the Board is

authorized to effect the necessary

correction on the entry for said position,

to reflect the true winner as determined in

accordance with the foregoing rules,

provided all the members of the Board

countersigned such entry. Such fact shall

be entered in the Minutes.

PROCLAMATION After the canvass of ERs, in the absence of a perfected appeal to the COMELEC, the Board of Canvassers shall proclaim the winning candidates. It is now settled that an incomplete canvass of votes is illegal and cannot be the basis of a proclamation. A canvass cannot be reflective of the true vote of the electorate unless all returns are considered and none is omitted. The fact that the candidate illegally proclaimed has assumed office is no a bar to the exercise of the COMELEC of the authority to annul canvass and proclamation. It is true that after the proclamation, the remedy of a party aggrieved in an election is an election protest. But this is on the assumption that the proclamation is valid. Where the proclamation is null an void, the proclaimed


candidate’s assumption of office cannot deprive the COMELEC of the to declare such proclamation a nullity (Utto vs. COMELEC, GR No. 150111, Jan. 31, 2002). Exception: When the omitted or uncanvassed ERs will not materially affect the results of the election. Thus, for example, the total number of votes of the omitted ERs would only be about, let say 100 votes, but the leading candidates has already a lead of about 1,000 votes, the incomplete canvass would not bar the proclamation of the winning candidate. Note: Petition for annulment of election must be filed before proclamation (Loong vs. COMELEC, 257 SCRA 1). Suspension of Proclamation The COMELC can suspend the proclamation evidence of winning candidate’s guilt is strong (Codilla, Sr. vs. De Venecia, GR No. 150605, Dec. 10, 2002).

The use of the word ―may‖ indicates that the suspension of the proclamation is merely permissive (Grego vs. COMELEC).

PRE-PROCLAMATION CONTROVERSY

…………………………………………………

Section 241, BP 881. Definition. - A pre-

proclamation controversy refers to any

question pertaining to or affecting the

proceedings of the board of canvassers which

may be raised by any candidate or by any

registered political party or coalition of

political parties before the board or directly

with the Commission, or any matter raised

under Sections 233, 234, 235 and 236 in

relation to the preparation, transmission,

receipt, custody and appreciation of the

election returns.

PURPOSE: To prevent the nefarious practice known as ―grab the proclamation, prolong the protest.‖ COMELEC Rules of Procedure on Disputes in Automated Election System (Resolution No. 8804, March 22, 2010) Shall apply to election disputes under the AES using the PCOS and shall cover pre-proclamation controversies and election protests.

Application of the Rules of Court, and other related rules: The COMELEC Rules of Procedure, the Rules of Court, and the Rules on Electronic Evidence shall apply by analogy, or in suppletory character, and whenever necessary, practicable and convenient (sec. 3, Rule 1). Issues that may be raised under sec. 1, COMELEC Resolution No. 8804: 1. Illegal Composition of the BOC.

Exists when, among other similar

circumstances, any of the members do not possess legal qualifications and appointments. The information technology capable person required to assist the BOC by RA 9369 shall be included as among those whose lack of qualifications may be questioned (sec. 1, Rule 4).

2. Illegal proceedings of the BOC

It exists when the canvassing is a sham or a

mere ceremony, the results of which are pre-determined and manipulated as when any of the following circumstances are present – a) precipitate canvassing; b) terrorism; c) lack of sufficient notice to the members of

the BOCs; or d) Improper venue (sec. 2, Rule 4).

Note: The basis of the canvass shall be the electronically transmitted results. No pre-proclamation cases in election of national

officials

Section 15, RA 7166. Pre-proclamation

Cases Not Allowed in Elections for

President Vice-President, Senator, and

Member of the House of Representatives.

- For purposes of the elections for President,

Vice-President, Senator and Member of the

House of Representatives, no pre-

proclamation cases shall be allowed on

matters relating to the preparation,

transmission, receipt, custody and

appreciation of the election returns or the

certificates of canvass, as the case may be.

However, this does not preclude the authority

of the appropriate canvassing body motu

propio or upon written complaint of an

interested person to correct manifest errors in

the certificate of canvass or election returns before it.


Questions affecting the composition or

proceedings of the board of canvassers may

be initiated in the board or directly with the

Commission in accordance with Section 19 hereof.

Any objection on the election returns before

the city or municipal board of canvassers, or

on the municipal certificates of canvass before

the provincial board of canvassers or district

boards of canvassers in Metro Manila Area,

shall be specifically noticed in the minutes of their respective proceedings.

Note: The SC discussed the implications introduced by sec. 37 and 38 of RA 9369 to sec. 15 and 30 of RA 7166. Accordingly, in elections for President, Vice-President, Senators and members of the House of Representatives, the general rule still is that pre-proclamation cases on matters relating to the preparation, transmission, receipt, custody and appreciation of election returns or certification of canvass are still prohibited (Pimentel III vs. COMELEC, GR No. 178413, March 13, 2008). As with other general rules, there are recognized exceptions to the prohibition, namely: 1. When it appears that any certificate of canvass

or supporting statement of votes by city/municipality or by precinct bears erasures or alteration which may cast doubt as to the veracity of the number of votes stated herein may affect the result of the election, upon request of presidential, vice-presidential or senatorial candidate concerned or his party, Congress or the Commission en banc, as the case may be, shall for the sole purpose of verifying the actual votes as they appear in the copies of the election returns submitted to it (Sec. 30, RA 7166 as amended by sec. 38 of RA 9369).

2. Correction of manifest errors

Manifest error is one that is visible to the eye or obvious to the understanding; that which is open, palpable, and incontrovertible; needing no evidence to make it more clear (O’Hara vs. COMELEC, GR No. 148941-42, March 12, 2002). Manifest Errors. The COMELEC may entertain petitions for the correction of manifest errors in the certificate of canvass or in the ERs. But to be manifest, the errors must appear on the face of the certificate of canvass or ERs sought to be corrected, and objections thereto must have been made before the Board of

Canvassers and specifically noted in the minutes of their respective proceedings (Chavez vs. COEMELC, 211 SCRA 315). A petition for correction of errors in the certificate of canvass may be filed at any time before proclamation (Bince vs. COMELEC, 242 SCRA 273). However, it was held that although the provision applies to pre-proclamation controversy, there is nothing to prevent its application to cases in which validity of the proclamation is in question. Since the statement of votes is the basis of the certificate of canvass, any error in the statement of votes affects the validity of the proclamation (Torres vs. COMELEC, 270 SCRA 583). Corrections should be made by inserting the corrections in the statements of votes or by preparing a new statement of votes incorporating the corrections (Ramirez vs. COEMELEC, 270 SCRA 590). 3. Matters relating to the composition or

proceedings of the BOC.

Section 19, RA 7166. Contested

Composition or Proceedings of the

Board: Period to Appeal: Decision by the

Commission. - Parties adversely affected by

a ruling of the board of canvassers on

questions affecting the composition or

proceedings of the board may appeal the

matter to the Commission within three (3)

days from a ruling thereon. The Commission

shall summarily decided the case within five (5) days from the filing thereof.

Pre-proclamation case is different from an action for the annulment of results of election or an action to declare failure of elections. The COMELEC is restricted in the pre-proclamation cases to an examination of the election returns on their face and is without jurisdiction to go beyond them and investigate election irregularities. In cases of actions for annulment of election results or declaration of failure of election, the COMELEC may conduct technical examination of election documents and compare and analyze voter’s signatures and fingerprints in order to determine whether or not the elections had been indeed been free, honest and clean (Loong vs. COMELEC, supra). However, the principle will not apply where there is prima facie showing that the return is not genuine, several entries having been omitted in the


questioned ER. The COMELEC is, thus, not powerless to determine if there is basis for the exclusion of the questioned ER (Lee vs. COMELEC, GR No. 157004, July 4, 2003).


Cases Involving Provincial, City and Municipal

Offices. - Pre-proclamation cases involving

provincial, city and municipal offices shall be

allowed and shall be governed by Sections

17, 18, 19, 20, 21 and 22 hereof.

Section 242, BP 881. Commission's

exclusive jurisdiction of all pre-

proclamation controversies. - The

Commission shall have exclusive jurisdiction

of all pre-proclamation controversies. It may

motu proprio or upon written petition, and

after due notice and hearing, order the partial

or total suspension of the proclamation of any

candidate-elect or annual partially or totally

any proclamation, if one has been made, as

the evidence shall warrant in accordance with

the succeeding sections.

Section 243, BP 881. Issues that may be

raised in pre-proclamation controversy. -

The following shall be proper issues that may

be raised in a pre-proclamation controversy:

(a) Illegal composition or proceedings of

the board of canvassers;

Note: A petition based on the illegal composition of the Board of Canvassers should be file immediately when the Board begins to act. Otherwise, the petitioner is deemed to have acquiesced in the composition of the Board (Laodeno vs. COMELEC, 276 SCRA 705).

(b) The canvassed election returns are

incomplete, contain material defects,

appear to be tampered with or falsified, or

contain discrepancies in the same returns

or in other authentic copies thereof as

mentioned in Sections 233, 234, 235 and

236 of this Code;

Note: It is error for the COMELEC to exclude from the canvass ERs where the defect in the return refers only to some incomplete data, inasmuch as se. 234, BP 881 should then be applied (Patoray vs. COMELEC, 249 SCRA 440).

While the duty of the Board of Canvassers is ministerial and, as a general rule, it may not inquire into issues beyond the election return, the situations contemplated in secs. 234, 235, and 236 allow the Board of Canvassers to order the opening of the ballot box and recount the votes of the candidates affected.

(c) The election returns were prepared

under duress, threats, coercion, or

intimidation, or they are obviously

manufactured or not authentic; and

The Doctrine of Statistical Improbabilities [aka Lagumbay Doctrine] – This enunciates what is the meaning of an obviously manufactured ER. In said case, it appears that the ERs were obviously

manufactured the fact that in each precinct the

number of registered voters equaled the number of

ballots and the number of votes reportedly cast and

tallied for each and every candidate of the Liberal

Party, the party in power; whereas, all the

candidates of the Nacionalista Party got exactly

zero: and in the second set, again contrary to all

statistical probabilities - all the reported votes were

for candidates of the Liberal Party, all of whom were

credited with exactly the same number of votes in

each precinct, ranging from 240 in one precinct to

650 in another precinct; whereas, all the candidates

of the Nactionalista Party were given exactly zero in

all said precincts‖. This, in spite of the fact that there

is no block voting nowadays and that in every

precinct there was a Nacionalista inspector whose

vote could be counted for the senatorial candidates

of the Nacionalista Party.

This doctrine may be applied at the first instance

by the Board of Canvassers by excluding from

the canvass ERs which appear to obviously

manufactured. Of course, the said doctrine may

be likewise applied by the Comelec in the

appeal (Lagumbay vs. COMELEC, 16 SCRA

175).

Post-Lagumbay Cases: The thrust of all the subsequent cases is to restrict the doctrine of the Lagumbay case to the unique uniformity of tally in favor of candidates belonging to one party and the systematic blanking of the opposing candidates in the same locality, such as to make the fraud ―palpable from the return itself . . . (and) there is no reason to accept it and give it prima facie value‖, and leading to no other reasonable conclusion than that the returns were obviously


manufactured because they were as ―utterly improbable and clearly incredible‖ as ―to win the sweepstakes ten times.‖ (Ilarde vs Comelec, et al., L-31446, Jan. 23, 1970, EN BANC). Caution in rejecting election returns: Extreme caution must be exercised in rejecting returns as obviously manufactured because of statistical improbability for it might result in the disenfranchisement of innocent voters (Casimiro vs Comelec, March 29, 1989, 171 SCRA 468). Note: Absent any evidence appearing on the face of the returns that they are indeed spurious, manufactured or tampered with, the election irregularities cited by the petitioner, which would require evidence aliunde [extrinsic evidence], cannot be raised in a pre-proclamation controversy (Dumayas vs. COMELEC, GR No. 141952-53, April 20, 2001).

(d) When substitute or fraudulent returns

in controverted polling places were

canvassed, the results of which materially

affected the standing of the aggrieved

candidate or candidates.

PROCEDURE Procedure on Pre-Proclamation Controversies (Under COMELEC Resolution No. 8804) 1. Who May Raise: Any candidate or any

registered political party, organization or coalition of political parties.

2. Before Whom May be Raised: Before the BOC, or directly with the COMELEC.

3. How Initiated: By filing a verified petition before the Board or directly with the COMELEC.

IF filed with the Board; appealable to the COMELEC within 3 days from issuance thereof.

4. When to File: Immediately when the BOC

begins to act as such is objected to, if it comes after the canvassing of the Board, or immediately when the proceedings become illegal.

A. For Petition Filed with the BOC: 1. Upon receipt thereof, BOC shall immediately

announce the fact of the filing and the ground/s raised therein.

2. BOC shall immediately deliberate and within 24-hours, make a prompt resolution in writing.

3. If the decision is in favor of the petition – BOC shall immediately inform the Commission. Thereafter, the Commission shall make the appropriate action thereon.

The filing of the petition shall in no case suspend the receipt by the BOC of the electronically transmitted precinct, municipal, city or provincial results.

Appeal from the Adverse Decision of the BOC to the COMELEC a) Notice of Appeal shall not suspend the formal

proclamation of the official results of the election, until the final resolution of the appeal.

b) Within 48 hours from such notice, the petitioner shall submit before the BOC a Memorandum on Appeal stating the reasons thereof.

c) The BOC shall then forward the entire records of the petition at the expense of the petitioner.

d) The petition shall be docketed by the clerk of Commission and submitted to the COMELEC for consideration and decision.

Within 5 days therefrom, the COMELEC [en

banc] shall render its decision on the appeal. B. If Filed Directly with the Commission: 1. Upon receipt of the petition, the clerk of the

Commission shall docket the same, and send summons to the BOC concerned to answer within 48 hours.

2. The COMELEC [en banc] shall resolve the petition within 5 days from the filing of the answer, or upon the expiration of the period to file the same. Note: The jurisdiction of the COMELEC en banc is bracketed because it is subject for verification.

Commencement of pre-proclamation controversy:


Controversies: How Commenced. - Questions

affecting the composition or proceedings of

the board of canvassers may be initiated in

the board or directly with the Commission.

However, matters raised under Sections 233,

234, 235 and 236 of the Omnibus Election

Code in relation to the preparation,

transmission, receipt, custody and

appreciation of the election returns, and the

certificates of canvass shall be brought in the

first instance before the board of canvassers

only.


Summary disposition of pre-proclamation controversies:

Section 18, RA7166. Summary Disposition

of Pre-proclamation Controversies. - All pre-

proclamation controversies on election

returns or certificates of canvass shall, on the

basis of the records and evidence elevated to

it by the board of canvassers, be disposed of

summarily by the Commission within seven

(7) days from receipt thereof. Its decisions

shall be executory after the lapse of seven (7)

days for receipts by the losing party of the decision of the Commission.

Disposition of contested ERs:

Note: This section is included for academic purposes only. The automation of the election substantially affected the pre-proclamation cases affecting the preparation, transmission, receipt, custody and appreciation of ERs/COCs.

Section 20, RA 7166. Procedure in

Disposition of Contested Election Returns. -

(a) Any candidate, political party or coalition

of political parties contesting the inclusion

or exclusion in the canvass of any election

returns on any of the grounds authorized

under Article XX or Sections 234, 235 and

236 of Article XIX of the Omnibus Election

Code shall submit their oral objection to the

chairman of the board of canvassers at the

time the questioned return is presented for

inclusion in the canvass. Such objection

shall be recorded in the minutes of the canvass.

(b) Upon receipts of any such objection, the

board of canvassers shall automatically

defer the canvass of the contested returns

and shall proceed to canvass the returns which are not contested by any party.

(c) Simultaneous with the oral objection,

the objecting party shall also enter his

objection in the form for written objections

to be prescribed by the Commission. Within

twenty-four (24) hours from and after the

presentation of such an objection, the

objecting party shall submit the evidence in

support of the objection, which shall be

attached to the form for written objections.

Within the same period of twenty-four (24)

hours after presentation of the objection,

any party may file a written and verified

opposition to the objection in the form also

to be prescribed by the Commission,

attaching thereto supporting evidence, if

any. The board shall not entertain any

objection or opposition unless reduced to writing in the prescribed forms.

The evidence attached to the objection or

opposition, submitted by the parties, shall

be immediately and formally admitted into

the records of the board by the chairman

affixing his signature at the back of each every page thereof.

(d) Upon receipt of the evidence, the board

shall keep up the contested returns,

consider the written objections thereto and

opposition, if any, and summarily and

immediately rules thereon. The board shall

enter its ruling on the prescribed form and

authenticate the same by the signatures of its members.

(e) Any part adversely affected by the ruling

of the board shall immediately inform the

board if he intends to appeal said ruling.

The board shall enter said information in the

minutes of the canvass, set aside the

returns and proceed to consider the other

returns.

(f) After all the uncontested returns have

been canvassed and the contested return

ruled upon by it, the board shall suspend

the canvass. Within forty-eight (48) hours,

therefrom, any party adversely affected by

the ruling may file with the board a written

and verified notice of appeal; and within an

unextendible period of five (5) days

thereafter an appeal may be taken to the Commission.

(g) Immediately upon receipt of the notice

of appeal, the board shall make an

appropriate report to the Commission,

elevating therewith the complete records

and evidence submitted in the canvass, and

furnishing the parties with copies of the

report.

(h) On the basis of the record and evidence

elevate to it by the board, the Commission

shall decide summarily the appeal within

seven (7) days from receipt of said record


and evidence. Any appeal brought before

the Commission on the ruling of the board,

without the accomplished forms and the

evidence appended thereto, shall be summarily dismissed.

The decision of the Commission shall be

executory after the lapse of seven (7) days

from receipts thereof by the losing party.

(i) The board of canvassers shall not proclaim

any candidate as winner unless authorized by

the Commission after the latter has ruled on

the object brought to it on appeal by the

losing party. Any proclamation made in

violation hereof shall be void ab initio, unless

the contested returns will not adversely affect

the results of the election.

Notes:

A petition for recount and/or re-appreciation of ballots cannot be considered as a pre-proclamation controversy because (Sanchez vs. COMELEC, 153 SCRA 67)–

i. Errors in the appreciation of ballots by the BEI are proper subject for an election protest;

ii. The appreciation of ballots is not part of the proceedings of the Board of Canvassers;

iii. The enumeration of the grounds for pre-proclamation cases is restrictive and exclusive;

iv. The policy of the law that pre-proclamation cases should be summarily decided.

The technical examination of the signatures and

thumb marks of voters runs counter to the nature and scope of a pre-proclamation contest; the remedy is to raise these issues in an election protest (Balindong vs. COMELEC, 271 SCRA 733).

The COMELEC, in a pre-proclamation contest, may order the correction of clerical error in the Statement of Votes (prepared by the Board of Canvassers to correspond to the figures in the ERs), even if the candidate failed to file the timely protest during the canvassing, as the error of the Statements of Votes was not apparent (Villaroya vs. COMELEC, 155 SCRA 633).

The COMELEC is with the authority to annul any canvass and proclamation illegally made. The fact that a candidate illegally proclaimed has assumed office is not a bar to the exercise of

such power. It is also true that as a general rule, the proper remedy after the proclamation would be to file a regular election protest or quo warranto. This rule, however, admits of exceptions, and one of those is where the proclamation was null and void. In such case, the assumption of office cannot deprive the COMELEC the power to declare such proclamation a nullity (Espidol vs. COMELEC, GR No. 164922, Oct. 11, 2005).

The filing of a petition to annul proclamation suspends the running of the 10-day period within which to file an election contest, provided that there are allegations which when proved, will render the proclamation null and void. Such may be filed with the COMLEC within 10 days after the proclamation (Mentang vs. COMELEC, GR No. 110347, Feb. 4, 1994).

Partial Proclamation:

Section 21, RA 7166. Partial Proclamation. -

Notwithstanding the pendency of any pre-

proclamation controversy, the Commission

may summarily order the proclamation of

other winning candidates whose election will

not be affected by the outcome of the

controversy.

Partial Annulment of Proclamation Not Allowed: This presupposes that there are two or more candidates for the same office (e. g., kagawads) and the winners have already been proclaimed. A loser cannot validly contend that the proclamation is valid except only as to one of the candidates who was included in the proclamation. Sec. 21 of RA 7166 which allows partial proclamation cannot support the conclusion that where a proclamation of the winning candidates has already been made and the issue is the validity of that singular act of proclamation, there can be sanctioned a partial annulment of that single proclamation for the reason that Sec. 21 applies only where there is yet no proclamation made by the Board of Canvassers. (Guiao vs Comelec, et al., L-68056, July 5, 1985, EN BANC).

ELECTION CONTESTS

…………………………………………………

Any matter of adversary proceeding by which matters involving title or claim of title to an elective office, made before or after the proclamation of the winner, is settled whether or not contestant is claiming office in dispute.


In the case, however, of election of barangay

officials, the term is restricted to proceedings after the proclamation as no pre-proclamation controversies are allowed (Taule vs. Santos, GR No. 90336, Aug. 12, 1991).

Nature: It is summary proceeding of political character. Purpose: To ascertain the candidate lawfully elected to office. Jurisdiction Over Election Contests: A. Original and Exclusive –

1) President/Vice-President – Supreme Court en banc acting as Presidential Electoral Tribunal (PET)

2) Senator –Senate Electoral Tribunal (SET). 3) Representative – House of Representatives

Electoral Tribunal (HRET). 4) Regional/Provincial/City – COMELEC. 5) Municipal – RTC. 6) Barangay – MTC, MeTC, MCTC 7) Sangguniang Kabataan - .DILG (Alunan vs.

Mirasol, GR No. 108399, July 31, 1997).

In the absence of any express provision in the governing law, it is the RTC, which has jurisdiction over controversies involving election of members of the SK (Mercado vs. Board of Election Inspectors, GR No. 109713, April 6, 1995).

B. Appellate Jurisdiction –

1) From RTC/MTC – appeal shall be made exclusively to the COMELEC, whose decision shall be final and unappeasable.

Period to Appeal: 5 days from promulgation or receipt of a copy of the decision.

The filing of a MR is a prohibited pleading and does not interrupt the running of the 5-day period (Veloria vs. Garcia, 211 SCRA 907).

The RTC/MTC has the competence to order execution of its decision pending appeal, it being a judicial prerogative and there being no law dis-authorizing the same (Garcia vs. De Jesus, 206 SCRA 779).

In the exercise of its exclusive appellate jurisdiction, the COMELEC has the power to issue writs of certiorari, prohibition and mandamus under sec. 50 of BP 697, it being not amended by BP 881 (Relampagos vs. Cumba, 243 SCRA 502).

The provision of RA 6679, granting appellate

jurisdiction to the RTC over decisions of MTC in electoral cases involving barangay officials is unconstitutional (Flores vs. COMELC, 184 SCRA 484).

Galang Doctrine [Galang vs. Geronimo] A petition for certiorari questioning an interlocutory order of a trial court in an electoral protest is within the appellate jurisdiction of the COMELEC (Ceriaco Bulilis vs. Victorino Nuez, GR No. 195953, Aug. 9, 2011).

The fact that decisions, final orders or rulings of the COMELEC in appealed cases involving municipal and barangay officials are final [and executory] and unappealable does not preclude a recourse to the SC by way of a special civil action for certiorari (Galido vs. COMELEC, 193 SCRA 78).

2) Decisions, rulings of the COMELEC division

are subject to Motion for Reconsideration to be resolved by the COMELEC en banc.

3) Decisions, ruling, final orders of the COMELEC en banc is reviewable via Petition for CPM within 30 days from notice of the decision, etc (see Rule 64, Rules of Court in Remedial Law Reviewer.

4) Decisions of the Electoral Tribunals, except the PET, are not appealable but may be subject of review by the SC via Rule 65 (petition for CPM).

Actions which may be Filed

A. Election Protest - Requisites: i. Must be filed by any candidate who has filed a

certificate of candidacy had has been voted upon for the same office;

ii. On the grounds of terrorism, fraud, irregularities or illegal acts committed before, during or after the casting and counting of votes;

Failure of the protestant to raise the question identical handwriting or of impugning the validity of the ballots on that ground does not preclude the COMELEC from rejecting the ballots. Unlike ordinary suit, an election protest is of utmost public concern. The rights of the contending parties must yield to the far greater interest of the citizens in upholding the sanctity of the


ballot. The COMELEC cannot simply close its eyes to the illegality of the ballots even if the protestant omitted to raise the ground in his protest (Arao vs. COMELEC, 210 SCRA 290). An entry of general denial in election cases does not amount to an admission of the material allegations in the protest (Loyola vs. HRET, GR No. 109026, Jan. 4, 1994). An order regarding revision of ballots is an interlocutory order because it still requires a party to perform certain acts leading to the final adjudication of the case (Bulaong vs. COMELEC, 220 SCRA 745). GR: The filing of an election protest or quo warranto precludes the subsequent filing of a pre-proclamation case or amounts to an abandonment of one earlier filed (Laodeno vs. COMELEC, 276 SCRA 706).

Exceptions: (Samad vs. COMELEC, GR No. 107854, July 16, 1993).

a) The Board of Canvassers was improperly constituted;

b) Where quo warranto is not the proper remedy;

c) What was really filed is not a petition for quo warranto or an election protest but a petition to annul proclamation;

d) The filing of the election contest was expressly made without prejudice to the pre-proclamation case, or was made ad cautelam;

e) The proclamation is null and void.

The election protest filed by Santiago against President Ramos was rendered moot and academic by the election of Santiago as Senator in the May 1995 elections an her subsequent assumption to office on June 30, 1995 (Santiago vs. Ramos, 253 SCRA 599). Note: Where, however, the protestant accepted and assume an employment in a mere temporary [confidential in nature] capacity, there is no abandonment of the election protest.

iii. Within 10 days from proclamation of the results of the election.

The period of filing an election protest is suspended by the pendency of a pre-proclamation controversy (Gatchalian vs. COMELEC, 245 SCRA 208).

However, there is no law or rule prohibiting the simultaneous prosecution or adjudication

of pre-proclamation controversies and election protests since it involves elective officials, and are of different issues (Tan vs. COMELEC, GR Nos. 166143-47, Nov. 20, 2006).

Where after 5 days from the proclamation of the winning candidate, the loser files an MR in the pre-proclamation case, there are only 5 days which remain of the period within which to file an election protest (Roquero vs. COMELEC, 289 SCRA 150). The COMELEC may not entertain a counter-protest filed beyond the [5-day] reglementary period. The period is mandatory (Kho vs. COMELEC, GR No. 124033, Sept. 25, 1997). Remedies if counter protest is entertained by the court despite it being filed out of time:

a) File a motion to expunge it from the records of the case.

b) If motion is denied, file a petition for certiorari on the ground of grave abuse of discretion.

Death of Protestant The death of the protestant does not extinguish an election protest. Election protest is imbued with public interest which raises it into a plane over and above ordinary civil actions, because it involves not only the adjudication of private interest of the rival candidates but also the paramount need of dispelling once and for all the uncertainty that beclouds the real choice of the electorate with respect to who shall discharge the prerogatives of the office within their gift. In this case, the Vice-Mayor elect has the status (to intervene) of a real party in interest in the continuation of the proceeding (De Castro vs. COMELEC, 267 SCRA 806). Persons not real parties in interest could not be allowed to intervene (to prosecution to its conclusion the protest filed by the deceased protestant) because it would make the proceedings complicated, expensive and interminable. The spouse of the deceased is not a real party in interest (Poe vs. Gloria Macapagal-Arroyo, PET Case No. 002, March 29, 2005).


Procedure in Election Protests (Under COMELEC Resolution No. 8804)

Filing of the Election Protest/Quo Warranto with the

COMELEC within 10 days from proclamation

Director of Election Contest and Adjudication

Department [ECAD] shall immediately docket the protest and raffle the case.

Within 3 days from filing, corresponding summons

shall be issued to the protestee or respondent.

Filing of answer within 5 days from notice

Commission may order the production and custody of ballot boxes, election documents, data storage

devices, and machines used in the elections.

Preliminary Conference – within 3 days after the

filing of the last responsive pleading, or expiration of the same period without any responsive pleading

having been filed.

Recount of ballots/Re-tabulation of election

documents

Technical examination

Hearing

Presentation and reception of evidence

The Commission shall decide the election contest

within 30 days from the date it is submitted for decision.

1. Who May File Petition: Any candidate who was

voted for in the same office and who received the 2

nd or 3

rd highest number of votes or, in a

multi-slot position, was among the next four candidates following the last ranked winner duly proclaimed.

2. How Initiated: An election protest or petition for quo warranto shall be filed directly with the

Commission within the non-extendible period of 10 days following the date of proclamation. Each contest shall refer exclusively to one

office but contents for offices of the Sangguniang Panlalawigan, Panlunsod, or Pampook may be consolidated in one case.

Pendency of pre-proclamation controversy involving the validity of the proclamation suspends the running of the period to an election contest.

3. Contents of the Election Protest:

a) Position involved; b) That the protestant was a candidate who

has duly filed a COC and has been voted for the same office;

c) Date of Proclamation; d) Number of votes credited to the parties per

proclamation; e) Total number of precincts of the region,

province or city concerned; f) Protested precincts and votes of the parties

in the protested precincts per Statement of Votes by Precinct or, if the votes of the parties are not specified, an explanation why the votes are not specified;

g) Detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or irregularities in the protested precincts.

Summary Dismissal of Election Contest Grounds: 1) Commission has no jurisdiction over the

subject matter; 2) Protest is insufficient in form and in

contents; 3) petition is filed beyond the prescriptive

period; 4) Failure to pay the required filing fees/appeal

fees; 5) In case of a protest where a cash deposit is

required, the cash deposit is not paid within 15 days from the filing of the protest.

4. Service of Summons: Within 3 days from the

filing, corresponding summons to the protestee shall be issued together with a copy of the protest, requiring the filing of an answer within a non-extendible period of 5 days from notice. The answer may include a Counter-Protest, which shall be answerable within a non-extendible period of 5 days from notice. By Whom Served:

a) By bailiff of the Commission or Division or upon request of the Commission or Division;


b) By the Sheriff of any court in the place where the parties to be served reside, or for special reasons;

c) By a person especially authorized by the Commission or Division.

5. Preliminary Conference: Within 3 days after

the filing of the last responsive pleading, or the expiration of the same period without any responsive pleading having been filed, the Commission shall conduct a mandatory preliminary conference among the parties.

Matters to be Considered in the Conference: 1) Simplification of the issues; 2) Necessity or desirability of amendments to

the pleadings; 3) Possibility of obtaining stipulations or

admissions of facts and of documents to avoid unnecessary proof;

4) Limitation of the number of witnesses; 5) Nature of the testimonies of the witnesses

whether they relate to evidence aliunde, the ballots or otherwise;

6) Withdrawal of certain protested or counter-protested precincts (especially where the ballot boxes or ballots are unavailable or are missing and cannot be located or destroyed due to natural disasters);

7) Number of recount committees to be constituted;

8) Procedure to be followed in case the election protest or counter-protest seeks, wholly or partially, the examination, verification or re-tabulation of election returns;

9) Such other matters as may aid in the prompt disposition of the case.

6. Recount of the Ballots: The recount of ballots

shall commence on the date specified in the Preliminary Conference Order, unless re-scheduled by order of the Division. Continues Recount – once commenced, the

recount shall continue from day to day as far as practicable until terminated.

Prohibited Access – during the recount, no person other than the Commission, the Recount Coordinators and the member so the Recount Committees, the parties and their duly authorized representatives, shall have access to the recount area.

Conduct of the Recount – shall be done manually and visually.

The committee shall prepare and submit to the Commission a recount report per precinct.

7. Presentation and Reception of Evidence: The reception of evidence on all matter or issues raised in the protest and counter-protest shall be presented and offered in a hearing upon completion of (a) recount of ballots, or re-tabulation of election documents, or (b) the technical examination, if warranted. Order of Hearing 1) Protestant shall present evidence in support

of the protest; 2) Protestee shall then adduce evidence in

support of the defense, counterclaim, or counter-protest, if any;

3) Parties may respectively offer rebutting evidence only unless the Commission for good reasons, in the furtherance of justice, permits them to offer evidence upon their original case;

4) No surrebuttal shall be allowed.

Disputable Presumptions

a. On the election procedure – 1) The election of candidates was held on

the date and time set and in the polling place determined by the COMELEC;

2) The BEIs were duly constituted and organized;

3) Political parties and candidates were duly represented by poll watchers;

4) Poll watchers were able to perform their functions;

5) The Minutes of Voting and Counting contains all the incidents that transpired before the BEIs.

b. On the election paraphernalia –

1) Ballots and ERs that bear the security markings and features prescribed by the COMELEC are genuine;

2) The data and information supplied by the members of the BEIs in accountable forms are true and correct;

3) The allocation, packing and distribution of election documents or paraphernalia were properly and timely done.

c. On the appreciation of the ballots –

1) A ballot with appropriate security markings is valid;

2) The ballot reflects the intent of the voter; 3) The ballot is properly accomplished; 4) A voter personally prepared one ballot,

except in case of assistors; and 5) The exercise of one’s right to vote was

voluntary and free.


8. Decision: The Commission shall decide the election protest within 30 days from the date it is submitted for decision.

B. Quo Warranto – Requisites:

a) Filed by any registered voter in the constituency;

b) On the grounds of ineligibility or disloyalty to the Republic of the Philippines;

c) Filed within 10 days from proclamation of the results of the election.

The Doctrine of the Rejection of the Second Placer A candidate who obtained the second highest number of votes cannot be declared as having been elected in case of disqualification of the first placer (Labo vs. COMELEC, 176 SCRA 1). To proclaim the second placer would be anathema to the most basic precepts of republicanism and democracy enshrined in our Constitution. It would in effect, be advocating a massive disenfranchisement of the majority of the voters (Ocampo vs. HRET, GR No. 158466, June 15, 2004).

Election Protest Quo Warranto

Strictly a contest between the winning and the defeated candidates on grounds of election frauds or irregularities, as to who actually obtained the majority of the legal votes and therefore is entitled to hold office.

Refers to questions of disloyalty or ineligibility of the winning candidate. It is a proceeding to unseat the ineligible person from office, but not to install the protestant in his place

Filed by a candidate and has been voted for the same elective office

Can be filed by any voter.

A protestee may be ousted and the protestant seated in the office vacated

While the respondent may be unseated, the petitioner will not be seated

QUO WARRANTO IN ELECTORAL

PROCEEDINGS

QUO WARRANTO UNDER RULE 66,

ROC

To contest the right of

an elected public officer to hold public office

Prerogative writ by which the government

can call upon any person to show by what

title he holds a public office or exercise a

public franchise

A proceeding under the Omnibus Election Code

for the exclusive purpose of impugning the election of a public officer on the ground of

ineligibility or disqualification to hold the office and disloyalty to the Republic of the

Philippines

3 grounds: usurpation; forfeiture; Illegal association

Petition is filed within 10 days from proclamation of the candidate note: a

petition to annul proclamation suspends

the 10-day period.

Presupposes the respondent is already

holding office and action must be

commenced within 1 year after cause of ouster or right of

petitioner to hold office arose

May be filed by any

registered voter in the constituency

The petitioner must be the gov’t or the person

entitled to the office and who would assume the

same if his action succeeds

Actual or compensatory damages are

recoverable in quo warranto proceedings under the OEC (sec.

259, OEC)

Person adjudged entitled to the office may also bring an action (separate)

against the respondent to recover damages

Jurisdiction is with the MTCs, RTCs, or the

COMELEC, as the case may be.

Jurisdiction is with the

RTC

Section 259, BP 881. Actual or

compensatory damages. - Actual or

compensatory damages may be granted in all

election contests or in quo warranto

proceedings in accordance with law.

It was the intent of the legislators to do away with the provisions indemnifying the victorious party for expenses incurred in the election contest, in the absence of a wrongful act or omission clearly


attributable to the losing party (Atienza, vs. COMELEC, GR No. 108533, Dec. 20, 1994). Award of damages was reversed by the SC saying that the criterion for justifiable award of damages remains to be the existence of pertinent breach of obligations arising from contracts, quasi-contracts, tortuous acts or crimes or a specific legal provision authorizing money claim in the context of election cases. If any damage had been suffered by private respondent due to the execution of judgment pending appeal, the damage may be said to be equivalent to damnum absque injuria. Unless a decision on the merits would be of practical value, an election protest which has already become moot and academic, because of the expiration of the term of the contested post, is dismissible on that ground. Thus, although the petition appears to be moot and academic because the post to which their right to office no longer exists, the question as to damages remains ripe for adjudication (Malaluan vs. COMELEC, 254 SCRA 397).

ELECTION OFFENSES

…………………………………………

………

Note: Good Faith is Not a Defense Election offenses are generally mala prohibita. Proof of criminal intent is not necessary. Good faith, ignorance or lack of malice is not a defense; the commission of the prohibited act is sufficient (P. vs. Bayona, 61 Phil. 181). Jurisdiction Over Election Cases A. Investigation and prosecution – The

COMELEC has the exclusive jurisdiction to investigate and prosecute cases involving violation of election laws. However, it may validly delegate the power to the Provincial Prosecutor (P. vs. Judge Basilia, 179 SCRA 87).

Investigation and prosecution Section

265, BP 881. Prosecution. - The

Commission shall, through its duly

authorized legal officers, have the

exclusive power to conduct

preliminary investigation of all election

offenses punishable under this Code,

and to prosecute the same. The

Commission may avail of the

assistance of other prosecuting arms

of the government: Provided,

however, That in the event that the

Commission fails to act on any

complaint within four months from his

filing, the complainant may file the

complaint with the office of the fiscal

or with the Ministry of Justice for

proper investigation and prosecution,

if warranted.

Investigation and Prosecution [under RA 9369]

Sec. 43, RA 9369. The Commission shall,

through its duly authorized legal officers,

have the power, concurrent with other

prosecuting arms of the government, to

conduct preliminary investigation of all

election offenses punishable under this

Code, and prosecute the same.

Note: Sec. 43, RA 9369 does not violate sec. 2[6], Art. IX-C of the Constitution. The grant of ―exclusive power” to investigate and prosecute election offenses was not by virtue of the Constitution but by sec. 265, OEC, legislative enactment. Thus, sec. 43, which grants the COMELEC the power, concurrent with other prosecuting arms of the government, to conduct preliminary investigation of all election offenses and prosecute the same is a valid amendment of the OEC, pursuant to plenary power of legislature to amend or repeal laws (BANAT vs. COMELEC, GR No. 177508, Aug. 7, 2009).

It is NOT the duty of the COMELEC, as

investigator and prosecutor to gather proof in support of a complaint filed before it (Kilosbayan vs. COMELEC, GR No. 128054, Oct. 16, 1997).

B. Trial and Decision – The RTC has the

exclusive original jurisdiction to try and decide any criminal actions or proceedings for violation of election laws (Naldoza vs. Lavilles, 254 SCRA 286).

Section 268, BP 881. Jurisdiction

of courts. - The regional trial court

shall have the exclusive original

jurisdiction to try and decide any

criminal action or proceedings for

violation of this Code, except those

relating to the offense of failure to

register or failure to vote which shall

be under the jurisdiction of the

metropolitan or municipal trial courts.


From the decision of the courts, appeal

will lie as in other criminal cases.

Section 263, BP 881. Persons criminally

liable. - The principals, accomplices, and

accessories, as defined in the Revised Penal

Code, shall be criminally liable for election

offenses. If the one responsible be a political

party or an entity, its president or head, the

officials and employees of the same,

performing duties connected with the offense

committed and its members who may be

principals, accomplices, or accessories shall

be liable, in addition to the liability of such

party or entity.

Section 264, BP 881. Penalties. - Any

person found guilty of any election offense

under this Code shall be punished with

imprisonment of not less than one year but

not more than six years and shall not be

subject to probation. In addition, the guilty

party shall be sentenced to suffer

disqualification to hold public office and

deprivation of the right of suffrage. If he is a

foreigner, he shall be sentenced to

deportation which shall be enforced after the

prison term has been served. Any political

party found guilty shall be sentenced to pay a

fine of not less than ten thousand pesos,

which shall be imposed upon such party after

criminal action has been instituted in which

their corresponding officials have been found

guilty.

Section 267, OEC. Prescription. - Election

offenses shall prescribe after five years from

the date of their commission. If the discovery

of the offense be made in an election contest

proceedings, the period of prescription shall

commence on the date on which the

judgment in such proceedings becomes final

and executory.

Note: Prescription of election offenses is interrupted when proceedings are instituted against the offender. Specifically, the period of prescription is interrupted by the filing of the complaint even if it be merely for purposes of preliminary examination or investigation (Baytan vs. COMELEC, GR No. 153945, Feb. 4, 2003).

Section 269, BP 881. Preferential

disposition of election offenses. - The

investigation and prosecution of cases

involving violations of the election laws shall

be given preference and priority by the

Commission on Elections and prosecuting

officials. Their investigation shall be

commenced without delay, and shall be

resolved by the investigating officer within

five days from its submission for resolution.

The courts shall likewise give preference to

election offenses over all other cases, except

petitions for writ of habeas corpus. Their trial

shall likewise be commenced without delay,

and shall be conducted continuously until

terminated, and the case shall be decided

within thirty days from its submission for

decision.

Prohibited Acts

Section 261, BP 881. Prohibited Acts. -

The following shall be guilty of an

election offense:

(a) Vote-buying and vote-selling. -

(1) Any person who gives, offers or

promises money or anything of value,

gives or promises any office or

employment, franchise or grant, public or

private, or makes or offers to make an

expenditure, directly or indirectly, or

cause an expenditure to be made to any

person, association, corporation, entity, or

community in order to induce anyone or

the public in general to vote for or against

any candidate or withhold his vote in the

election, or to vote for or against any

aspirant for the nomination or choice of a

candidate in a convention or similar

selection process of a political party.

(2) Any person, association, corporation,

group or community who solicits or

receives, directly or indirectly, any

expenditure or promise of any office or

employment, public or private, for any of

the foregoing considerations.


Note: The distribution of cigarettes to the people who attended a political meeting falls within the context of the prohibition (P. vs. Ferrer, 54 OG 1348).

(b) Conspiracy to bribe voters. - Two or

more persons, whether candidates or not,

who come to an agreement concerning the

commission of any violation of paragraph (a)

of this section and decide to commit it.

(c) Wagering upon result of election. -

Any person who bets or wagers upon the

outcome of, or any contingency connected

with an election. Any money or thing of value

or deposit of money or thing of value situated

anywhere in the Philippines put as such bet or

wager shall be forfeited to the government.

(d) Coercion of subordinates. -

(1) Any public officer, or any officer of any

public or private corporation or

association, or any head, superior, or

administrator of any religious

organization, or any employer or land-

owner who coerces or intimidates or

compels, or in any manner influence,

directly or indirectly, any of his

subordinates or members or parishioners

or employees or house helpers, tenants,

overseers, farm helpers, tillers, or lease

holders to aid, campaign or vote for or

against any candidate or any aspirant for

the nomination or selection of candidates.

(2) Any public officer or any officer of any

commercial, industrial, agricultural,

economic or social enterprise or public or

private corporation or association, or any

head, superior or administrator of any

religious organization, or any employer or

landowner who dismisses or threatens to

dismiss, punishes or threatens to punish

be reducing his salary, wage or

compensation, or by demotion, transfer,

suspension, separation, excommunication,

ejectment, or causing him annoyance in

the performance of his job or in his

membership, any subordinate member or

affiliate, parishioner, employee or house

helper, tenant, overseer, farm helper,

tiller, or lease holder, for disobeying or

not complying with any of the acts

ordered by the former to aid, campaign or

vote for or against any candidate, or any

aspirant for the nomination or selection of

candidates.

(e) Threats, intimidation, terrorism, use

of fraudulent device or other forms of

coercion. - Any person who, directly or

indirectly, threatens, intimidates or actually

causes, inflicts or produces any violence,

injury, punishment, damage, loss or

disadvantage upon any person or persons or

that of the immediate members of his family,

his honor or property, or uses any fraudulent

device or scheme to compel or induce the

registration or refraining from registration of

any voter, or the participation in a campaign

or refraining or desistance from any

campaign, or the casting of any vote or

omission to vote, or any promise of such

registration, campaign, vote, or omission

therefrom.

(f) Coercion of election officials and

employees. - Any person who, directly or

indirectly, threatens, intimidates, terrorizes or

coerces any election official or employee in

the performance of his election functions or

duties.

(g) Appointment of new employees,

creation of new position, promotion, or

giving salary increases. - During the period

of forty-five days before a regular election

and thirty days before a special election,

(1) any head, official or appointing officer

of a government office, agency or

instrumentality, whether national or local,

including government-owned or controlled

corporations, who appoints or hires any

new employee, whether provisional,

temporary or casual, or creates and fills

any new position, except upon prior

authority of the Commission. The

Commission shall not grant the authority

sought unless, it is satisfied that the


position to be filled is essential to the

proper functioning of the office or agency

concerned, and that the position shall not

be filled in a manner that may influence

the election.

As an exception to the foregoing

provisions, a new employee may be

appointed in case of urgent need:

Provided, however, That notice of the

appointment shall be given to the

Commission within three days from the

date of the appointment. Any appointment

or hiring in violation of this provision shall

be null and void.

Note: The Court clarified that section 261 (g) applies only to those appointments covered by the Civil Service Law, and not to the filling of vacancies in [elective] in the LGUs (Ong vs. Martinez, GR No. 87743, Aug. 21, 1990).

(2) Any government official who

promotes, or gives any increase of salary

or remuneration or privilege to any

government official or employee, including

those in government-owned or controlled

corporations.

COMELEC Resolution No. 8737 (Dec. 29, 2009) The Department of Budget and Management and the Commission of Audit, including all their field offices, shall not release or authorize the release of any appropriation, or pass in audit, payments expenditures of public funds that may be directly used in violation of the foregoing prohibitions.

(h) Transfer of officers and employees in

the civil service. - Any public official who

makes or causes any transfer or detail

whatever of any officer or employee in the

civil service including public school teachers,

within the election period except upon prior

approval of the Commission.

Elements: a) The fact of transfer or detail within the

election period as fixed by the COMELEC, and

b) The transfer or detail was made without the approval of the COMELEC, in accordance with its implementing rules and regulations.

Thus, it was held that the transfer or detail will not be penalized, if done to promote efficiency in the government service (P. vs. Reyes, 247 SCRA 328). The phrase ―any transfer or detail whatever‖ indicates that any movement of personnel from one station to another, whether or not in the same office or agency during the election period is covered by the provision (Regalado vs. CA, GR No. 115962, Feb. 15, 2000).

(i) Intervention of public officers and

employees. - Any officer or employee in the

civil service, except those holding political

offices; any officer, employee, or member or

the Armed Forces of the Philippines, or any

police force, special forces, home defense

forces, barangay self-defense units and all

other para-military units that now exist or

which may hereafter be organized who,

directly or indirectly, intervenes in any

election campaign or engages in any partisan

political activity, except to vote or to preserve

public order, if he is a peace officer.

(j) Undue influence. - It is unlawful for any

person to promise any office or employment,

public or private, or to make or offer to make

an expenditure, directly or indirectly, or to

cause an expenditure to be made to any

person, association, corporation or entity,

which may induce anyone or the public in

general either to vote or withhold his vote, or

to vote for or against any candidate in any

election or any aspirant for the nomination or

selection of an official candidate in a

convention of a political party. It is likewise

unlawful for any person, association,

corporation or community, to solicit or

receive, directly or indirectly, any expenditure

or promise or any office, or employment,

public or private, for any of the foregoing

considerations.

(k) Unlawful electioneering. - It is

unlawful to solicit votes or undertake any

propaganda on the day of registration before

the board of election inspectors and on the

day of election, for or against any candidate

or any political party within the polling place

and with a radius of thirty meters thereof.


(l) Prohibition against dismissal of

employees, laborers, or tenants. - No

employee or laborer shall be dismissed, nor a

tenant be ejected from his landholdings for

refusing or failing to vote for any candidate of

his employer or landowner. Any employee,

laborer or tenant so dismissed or ejected shall

be reinstated and the salary or wage of the

employee or laborer, or the share of the

harvest of the tenant, shall be restored to the

aggrieved party upon application to the

proper court.

(m) Appointment or use of special

policemen, special agents, confidential

agents or the like. - During the campaign

period, on the day before and on election day,

any appointing authority who appoints or any

person who utilizes the services of special

policemen, special agents, confidential agents

or persons performing similar functions;

persons previously appointed as special

policemen, special agents, confidential agents

or persons performing similar functions who

continue acting as such, and those who fail to

turn over their firearms, uniforms, insignias

and other badges of authority to the proper

officer who issued the same.

At the start of the aforementioned period, the

barangay chairman, municipal mayor, city

mayor, provincial governor, or any appointing

authority shall submit to the Commission a

complete list of all special policemen, special

agents, confidential agents or persons

performing similar functions in the employ of

their respective political subdivisions, with

such particulars as the Commission may

require.

(n) Illegal release of prisoners before

and after election. - The Director of the

Bureau of Prisons, any provincial warden, the

keeper of the jail or the person or persons

required by law to keep prisoners in their

custody who illegally orders or allows any

prisoner detained in the national penitentiary,

or the provincial, city or municipal jail to

leave the premises thereof sixty days before

and thirty days after the election. The

municipal or city warden, the provincial

warden, the keeper of the jail or the person

or persons required by law to keep prisoners

in their custody shall post in three

conspicuous public places a list of the

prisoners or detention prisoners under their

care. Detention prisoners must be categorized

as such.

(o) Use of public funds, money deposited

in trust, equipment, facilities owned or

controlled by the government for an

election campaign. - Any person who uses

under any guise whatsoever, directly or

indirectly, (1) public funds or money

deposited with, or held in trust by, public

financing institutions or by government

offices, banks, or agencies; (2) any printing

press, radio, or television station or audio-

visual equipment operated by the

Government or by its divisions, sub-divisions,

agencies or instrumentalities, including


corporations, or by the Armed Forces of the

Philippines; or (3) any equipment, vehicle,

facility, apparatus, or paraphernalia owned by

the government or by its political

subdivisions, agencies including government-

owned or controlled corporations, or by the

Armed Forces of the Philippines for any

election campaign or for any partisan political

activity.

(p) Deadly weapons. - Any person who

carries any deadly weapon in the polling place

and within a radius of one hundred meters

thereof during the days and hours fixed by

law for the registration of voters in the polling

place, voting, counting of votes, or

preparation of the election returns. However,

in cases of affray, turmoil, or disorder, any

peace officer or public officer authorized by

the Commission to supervise the election is

entitled to carry firearms or any other weapon

for the purpose of preserving order and

enforcing the law.

Note: It is no necessary that the deadly weapon be seized from the accused while he was in the precinct or within a radius of 100 meters therefrom; it is


enough that the accused carried a deadly weapon within the prohibited radius during any of the days and hours specified in the law (Mappala vs. Judge Nuñez, 240 SCRA 600).

(q) Carrying firearms outside residence

or place of business. - Any person who,

although possessing a permit to carry

firearms, carries any firearms outside his

residence or place of business during the

election period, unless authorized in writing

by the Commission: Provided, That a motor

vehicle, water or air craft shall not be

considered a residence or place of business or

extension hereof.

This prohibition shall not apply to cashiers

and disbursing officers while in the

performance of their duties or to persons who

by nature of their official duties, profession,

business or occupation habitually carry large

sums of money or valuables.

(r) Use of armored land, water or air

craft. - Any person who uses during the

campaign period, on the day before and on

election day, any armored land, water or air

craft, provided with any temporary or

permanent equipment or any other device or

contraption for the mounting or installation of

cannons, machine guns and other similar high

caliber firearms, including military type tanks,

half trucks, scout trucks, armored trucks, of

any make or model, whether new,

reconditioned, rebuilt or remodelled:

Provided, That banking or financial

institutions and all business firms may use

not more than two armored vehicles strictly

for, and limited to, the purpose of

transporting cash, gold bullion or other

valuables in connection with their business

from and to their place of business, upon

previous authority of the Commission.

(s) Wearing of uniforms and bearing

arms. - During the campaign period, on the

day before and on election day, any member

of security or police organization of

government agencies, commissions, councils,

bureaus, offices, or government-owned or

controlled corporations, or privately-owned or

operated security, investigative, protective or

intelligence agencies, who wears his uniform

or uses his insignia, decorations or regalia, or

bears arms outside the immediate vicinity of

his place of work: Provided, That this

prohibition shall not apply when said member

is in pursuit of a person who has committed

or is committing a crime in the premises he is

guarding; or when escorting or providing

security for the transport of payrolls,

deposits, or other valuables; or when

guarding the residence of private persons or

when guarding private residences, buildings

or offices: Provided, further, That in the last

case prior written approval of the Commission

shall be obtained. The Commission shall

decide all applications for authority under this

paragraph within fifteen days from the date of

the filing of such application.

During the same period, and ending thirty

days thereafter any member of the Armed

Forces of the Philippines, special, forces,

home defense forces, barangay self-defense

units and all other para-military units that

now exist or which may hereafter be

organized who wears his uniform or bears

arms outside the camp, garrison or barracks

to which he is assigned or detailed or outside

their homes, in case of members of para-

military units, unless (1) the President of the

Philippines shall have given previous authority

therefor, and the Commission notified thereof

in writing, or (2) the Commission authorizes

him to do so, which authority it shall give only

when necessary to assist it in maintaining

free, orderly and honest elections, and only

after notice and hearing. All personnel of the

Armed Forces authorized by the President or

the Commission to bear arms or wear their

uniforms outside their camps and all police

and peace officers shall bear their true name,

rank and serial number, if any, stitched in

block letters on a white background on the

left breast of their uniform, in letters and

numbers of a clearly legible design at least

two centimeters tall, which shall at all times

remain visible and uncovered.


During the election period, whenever the

Commission finds it necessary for the

promotion of free, orderly, honest and

peaceful elections in a specific area, it shall

confiscate or order the confiscation of

firearms of any member or members of the

Armed Forces of the Philippines, police forces,

home defense forces, barangay self-defense

units, and all other para-military units that

now exist, or which may hereafter be

organized, or any member or members of the

security or police organization, government

ministries, commissions, councils, bureaus,

offices, instrumentalities, or government-

owned or controlled corporations and other

subsidiaries, or of any member or members

of privately owned or operated security,

investigative, protective or intelligence

agencies performing identical or similar

functions.

(t) Policemen and provincial guards

acting as bodyguards or security guards.

- During the campaign period, on the day

before and on election day, any member of

the city or municipal police force, any

provincial or sub-provincial guard, any

member of the Armed Forces of the

Philippines, special forces, home defense

forces, barangay self-defense units and all

other para-military units that now exist or

which may hereafter be organized who acts

as bodyguard or security guard of any public

official, candidate or any other person, and

any of the latter who utilizes the services of

the former as bodyguard or security guard:

Provided, That, after due notice and hearing,

when the life and security of a candidate is in

jeopardy, the Commission is empowered to

assign at the candidate's choice, any member

of the Philippine Constabulary or the police

force of any municipality within the province

to act as his bodyguard or security guard in a

number to be determined by the Commission

but not to exceed three per candidate:

Provided, however, That when the

circumstances require immediate action, the

Commission may issue a temporary order

allowing the assignment of any member of

the Philippine Constabulary or the local police

force to act as bodyguard or security guard of

the candidate, subject to confirmation or

revocation.

(u) Organization or maintenance of

reaction forces, strike forces, or other

similar forces. - Any person who organizes

or maintains a reaction force, strike force or

similar force during the election period.

The heads of all reaction forces, strike forces,

or similar forces shall, not later than forty-five

days before the election, submit to the

Commission a complete list of all members

thereof with such particulars as the

Commission may require.

(v) Prohibition against release,

disbursement or expenditure of public

funds. - Any public official or employee

including barangay officials and those of


and their subsidiaries, who, during forty-five

days before a regular election and thirty days

before a special election, releases, disburses

or expends any public funds for:

(1) Any and all kinds of public works, except

the following:

(a) Maintenance of existing and/or

completed public works project: Provided,

That not more than the average number

of laborers or employees already

employed therein during the six-month

period immediately prior to the beginning

of the forty-five day period before election

day shall be permitted to work during

such time: Provided, further, That no

additional laborers shall be employed for

maintenance work within the said period

of forty-five days;

(b) Work undertaken by contract through

public bidding held, or by negotiated

contract awarded, before the forty-five

day period before election: Provided, That

work for the purpose of this section

undertaken under the so-called "takay" or


"paquiao" system shall not be considered

as work by contract;

(c) Payment for the usual cost of

preparation for working drawings,

specifications, bills of materials,

estimates, and other procedures

preparatory to actual construction

including the purchase of materials and

equipment, and all incidental expenses for

wages of watchmen and other laborers

employed for such work in the central

office and field storehouses before the

beginning of such period: Provided, That

the number of such laborers shall not be

increased over the number hired when the

project or projects were commenced; and

(d) Emergency work necessitated by the

occurrence of a public calamity, but such

work shall be limited to the restoration of

the damaged facility.

No payment shall be made within five

days before the date of election to

laborers who have rendered services in

projects or works except those falling

under subparagraphs (a), (b), (c), and

(d), of this paragraph.

This prohibition shall not apply to ongoing

public works projects commenced before

the campaign period or similar projects

under foreign agreements. For purposes

of this provision, it shall be the duty of the

government officials or agencies

concerned to report to the Commission

the list of all such projects being

undertaken by them.

(2) The Ministry of Social Services and

Development and any other office in other

ministries of the government performing

functions similar to said ministry, except for

salaries of personnel, and for such other

routine and normal expenses, and for such

other expenses as the Commission may

authorize after due notice and hearing.

Should a calamity or disaster occur, all

releases normally or usually coursed

through the said ministries and offices of

other ministries shall be turned over to, and

administered and disbursed by, the

Philippine National Red Cross, subject to the

supervision of the Commission on Audit or

its representatives, and no candidate or his

or her spouse or member of his family

within the second civil degree of affinity or

consanguinity shall participate, directly or

indirectly, in the distribution of any relief or

other goods to the victims of the calamity or

disaster; and

(3) The Ministry of Human Settlements and

any other office in any other ministry of the

government performing functions similar to

said ministry, except for salaries of

personnel and for such other necessary

administrative or other expenses as the

Commission may authorize after due notice

and hearing.

(w) Prohibition against construction of

public works, delivery of materials for

public works and issuance of treasury

warrants and similar devices. - During the

period of forty-five days preceding a regular

election and thirty days before a special

election, any person who (a) undertakes the

construction of any public works, except for

projects or works exempted in the preceding

paragraph; or (b) issues, uses or avails of

treasury warrants or any device undertaking

future delivery of money, goods or other

things of value chargeable against public

funds.

(x) Suspension of elective provincial,

city, municipal or barangay officer. - The

provisions of law to the contrary

notwithstanding during the election period,

any public official who suspends, without prior

approval of the Commission, any elective

provincial, city, municipal or barangay officer,

unless said suspension will be for purposes of

applying the "Anti-Graft and Corrupt Practices

Act" in relation to the suspension and removal

of elective officials; in which case the

provisions of this section shall be inapplicable.


(y) On Registration of Voters:

(1) Any person who, having all the

qualifications and none of the

disqualifications of a voter, fails without

justifiable excuse to register as a voter in an

election, plebiscite or referendum in which

he is qualified to vote.

(2) Any person who knowingly makes any

false or untruthful statement relative to any

of the data or information required in the

application for registration.

(3) Any person who deliberately imprints or

causes the imprinting of blurred or indistinct

fingerprints on any of the copies of the

application for registration or on the voter's

affidavit; or any person in charge of the

registration of voters who deliberately or

through negligence, causes or allows the

imprinting of blurred or indistinct

fingerprints on any of the aforementioned

registration forms, or any person who

tampers with the fingerprints in said

registration records.

(4) Any member of the board of election

inspectors who approves any application

which on its face shows that the applicant

does not possess all the qualifications

prescribed by law for a voter; or who

disapproves any application which on its

face shows that the applicant possesses all

such qualifications.

(5) Any person who, being a registered

voter, registers anew without filing an

application for cancellation of his previous

registration.

(6) Any person who registers in substitution

for another whether with or without the

latter's knowledge or consent.

(7) Any person who tampers with or

changes without authority any data or entry

in any voter's application for registration.

(8) Any person who delays, hinders or

obstruct another from registering.

(9) Any person who falsely certifies or

identifies another as a bona fide resident of

a particular place or locality for the purpose

of securing the latter's registration as a

voter.

(10) Any person who uses the voter's

affidavit of another for the purpose of

voting, whether or not he actually succeeds

in voting.

(11) Any person who places, inserts or

otherwise includes, as approved application

for registration in the book of voters or in

the provincial or national central files of

registered voters, the application of any

fictitious voter or any application that has

not been approved; or removes from, or

otherwise takes out of the book of voters or

the provincial or national central files of

registered voters any duly approved voter's

application, except upon lawful order of the

Commission, or of a competent court or

after proper cancellation as provided in

Sections 122, 123, 124 and 125 hereof.

(12) Any person who transfers or causes

the transfer of the registration record of a

voter to the book of voters of another

polling place, unless said transfer was due

to a change of address of the voter and the

voter was duly notified of his new polling

place.

(13) Any person who asks, demands, takes,

accepts or possesses, directly or indirectly,

the voter's affidavit of another, in order to

induce the latter to withhold his vote, or to

vote for or against any candidate in an

election or any issue in a plebiscite or

referendum. It shall be presumed prima

facie that the asking, demanding, taking,

accepting, or possessing is with such intent

if done within the period beginning ten days

before election day and ending ten days

after election day, unless the voter's

affidavit of another and the latter are both

members of the same family.


(14) Any person who delivers, hands over,

entrusts, gives, directly or indirectly his

voter's affidavit to another in consideration

of money or other benefit or promises

thereof, or takes or accepts such voter's

affidavit directly or indirectly, by giving or

causing the giving of money or other benefit

or making or causing the making of a

promise thereof.

(15) Any person who alters in any manner,

tears, defaces, removes or destroys any

certified list of voters.

(16) Any person who takes, carries or

possesses any blank or unused registration

form already issued to a city or municipality

outside of said city or municipality except as

otherwise provided in this Code or when

directed by express order of the court or of

the Commission.

(17) Any person who maliciously omits,

tampers or transfers to another list the

name of a registered voter from the official

list of voters posted outside the polling

place.

(z) On voting:

(1) Any person who fails to cast his vote

without justifiable excuse.

(2) Any person who votes more than once

in the same election, or who, not being a

registered voter, votes in an election.

(3) Any person who votes in substitution for

another whether with or without the latter's

knowledge and/or consent.

(4) Any person who, not being illiterate or

physically disabled, allows his ballot to be

prepared by another, or any person who

prepares the ballot of another who is not

illiterate or physically disabled, with or

without the latter's knowledge and/or

consent.

(5) Any person who avails himself of any

means of scheme to discover the contents

of the ballot of a voter who is preparing or

casting his vote or who has just voted.

(6) Any voter who, in the course of voting,

uses a ballot other than the one given by

the board of election inspectors or has in his

possession more than one official ballot.

(7) Any person who places under arrest or

detains a voter without lawful cause, or

molests him in such a manner as to obstruct

or prevent him from going to the polling

place to cast his vote or from returning

home after casting his vote, or to compel

him to reveal how he voted.


inspectors charged with the duty of reading

the ballot during the counting of votes who

deliberately omits to read the vote duly

written on the ballot, or misreads the vote

actually written thereon or reads the name

of a candidate where no name is written on

the ballot.


inspectors charged with the duty of tallying

the votes in the tally board or sheet,

election returns or other prescribed form

who deliberately fails to record a vote

therein or records erroneously the votes as

read, or records a vote where no such vote

has been read by the chairman.

(10) Any member of a board of election

inspectors who has made possible the

casting of more votes than there are

registered voters.

(11) Any person who, for the purpose of

disrupting or obstructing the election

process or causing confusion among the

voters, propagates false and alarming

reports or information or transmits or

circulates false orders, directives or

messages regarding any matter relating to

the printing of official ballots, the

postponement of the election, the transfer

of polling place or the general conduct of

the election.


(12) Any person who, without legal

authority, destroys, substitutes or takes

away from the possession of those having

legal custody thereof, or from the place

where they are legally deposited, any

election form or document or ballot box

which contains official ballots or other

documents used in the election.

(13) Any person having legal custody of the

ballot box containing the official ballots used

in the election who opens or destroys said

box or removes or destroys its contents

without or against the order of the

Commission or who, through his negligence,

enables any person to commit any of the

aforementioned acts, or takes away said

ballot box from his custody.


inspectors who knowingly uses ballots other

than the official ballots, except in those

cases where the use of emergency ballots is

authorized.

(15) Any public official who neglects or fails

to properly preserve or account for any

ballot box, documents and forms received

by him and kept under his custody.

(16) Any person who reveals the contents of

the ballot of an illiterate or disabled voter

whom he assisted in preparing a ballot.

(17) Any person who, without authority,

transfers the location of a polling place.


prints or causes the printing of any ballot or

election returns that appears as official

ballots or election returns or who distributes

or causes the same to be distributed for use

in the election, whether or not they are

actually used.


keeps, uses or carries out or causes to be

kept, used or carried out, any official ballot

or election returns or printed proof thereof,

type-form mould, electro-type printing

plates and any other plate, numbering

machines and other printing paraphernalia

being used in connection with the printing of

official ballots or election returns.

(20) Any official or employee of any printing

establishment or of the Commission or any

member of the committee in charge of the

printing of official ballots or election returns

who causes official ballots or election

returns to be printed in quantities exceeding

those authorized by the Commission or who

distributes, delivers, or in any manner

disposes of or causes to be distributed,

delivered, or disposed of, any official ballot

or election returns to any person or persons

not authorized by law or by the Commission

to receive or keep official ballots or election

returns or who sends or causes them to be

sent to any place not designated by law or

by the Commission.

(21) Any person who, through any act,

means or device, violates the integrity of

any official ballot or election returns before

or after they are used in the election.

(22) Any person who removes, tears,

defaces or destroys any certified list of

candidates posted inside the voting booths

during the hours of voting.

(23) Any person who holds or causes the

holding of an election on any other day than

that fixed by law or by the Commission, or

stops any election being legally held.

(24) Any person who deliberately blurs his

fingerprint in the voting record.

(aa) On Canvassing:

(1) Any chairman of the board of

canvassers who fails to give due notice of

the date, time and place of the meeting of

said board to the candidates, political

parties and/or members of the board.

(2) Any member of the board of canvassers

who proceeds with the canvass of the votes

and/or proclamation of any candidate which


was suspended or annulled by the

Commission.


who proceeds with the canvass of votes

and/or proclamation of any candidate in the

absence of quorum, or without giving due

notice of the date, time and place of the

meeting of the board to the candidates,

political parties, and/or other members of

the board.


who, without authority of the Commission,

uses in the canvass of votes and/or

proclamation of any candidate any

document other than the official copy of the

election returns.

(bb) Common to all boards of election

inspectors and boards of canvassers:

(1) Any member of any board of election

inspectors or board of canvassers who

deliberately absents himself from the

meetings of said body for the purpose of

obstructing or delaying the performance of

its duties or functions.

(2) Any member of any board of election

inspectors or board of canvassers who,

without justifiable reason, refuses to sign

and certify any election form required by

this Code or prescribed by the Commission

although he was present during the meeting

of the said body.

(3) Any person who, being ineligible for

appointment as member of any board of

election inspectors or board of canvassers,

accepts an appointment to said body,

assumes office, and actually serves as a

member thereof, or any of public officer or

any person acting in his behalf who appoints

such ineligible person knowing him to be

ineligible.

(4) Any person who, in the presence or

within the hearing of any board of election

inspectors or board of canvassers during

any of its meetings, conducts himself in

such a disorderly manner as to interrupt or

disrupt the work or proceedings to the end

of preventing said body from performing its

functions, either partly or totally.

(5) Any public official or person acting in his

behalf who relieves any member of any

board of election inspectors or board of

canvassers or who changes or causes the

change of the assignments of any member

of said board of election inspectors or board

of canvassers without authority of the

Commission.

(cc) On candidacy and campaign:

(1) Any political party which holds political

conventions or meetings to nominate its

official candidates earlier that the period

fixed in this Code.

(2) Any person who abstracts, destroys or

cancels any certificate of candidacy duly

filed and which has not been cancelled upon

order of the Commission.

(3) Any person who misleads the board of

election inspectors by submitting any false

or spurious certificate of candidacy or

document to the prejudice of a candidate.

(4) Any person who, being authorized to

receive certificates of candidacy, receives

any certificate of candidacy outside the

period for filing the same and makes it

appear that said certificate of candidacy was

filed on time; or any person who, by means

of fraud, threat, intimidation, terrorism or

coercion, causes or compels the commission

of said act.

(5) Any person who, by any device or

means, jams, obstructs or interferes with a

radio or television broadcast of any lawful

political program.

(6) Any person who solicits votes or

undertakes any propaganda, on the day of

election, for or against any candidate or any

political party within the polling place or

within a radius of thirty meters thereof.


(dd) Other prohibitions:

(1) Any person who sells, furnishes, offers,

buys, serves or takes intoxicating liquor on

the days fixed by law for the registration of

voters in the polling place, or on the day

before the election or on election day:

Provided, That hotels and other

establishments duly certified by the Ministry

of Tourism as tourist oriented and habitually

in the business of catering to foreign

tourists may be exempted for justifiable

reasons upon prior authority of the

Commission: Provided, further, That foreign

tourists taking intoxicating liquor in said

authorized hotels or establishments are

exempted from the provisions of this

subparagraph.

(2) Any person who opens in any polling

place or within a radius of thirty meters

thereof on election day and during the

counting of votes, booths or stalls of any

kind for the sale, dispensing or display of

wares, merchandise or refreshments,

whether solid or liquid, or for any other

purposes.

(3) Any person who holds on election day,

fairs, cockfights, boxing, horse races, jai-

alai or any other similar sports.

(4) Refusal to carry election mail matter. -

Any operator or employee of a public utility

or transportation company operating under

a certificate of public convenience, including

government-owned or controlled postal

service or its employees or deputized

agents who refuse to carry official election

mail matters free of charge during the

election period. In addition to the penalty

prescribed herein, such refusal shall

constitute a ground for cancellation or

revocation of certificate of public

convenience or franchise.

(5) Prohibition against discrimination in the

sale of air time. - Any person who operates

a radio or television station who without

justifiable cause discriminates against any

political party, coalition or aggroupment of

parties or any candidate in the sale of air

time. In addition to the penalty prescribed

herein, such refusal shall constitute a

ground for cancellation or revocation of the

franchise.

Election Offenses under Special Laws: 1. Electoral Reforms Law of 1987; 2. Voter’s Registration Act of 1996 [sec. 45] ; 3. RA 9189, The Overseas Absentee Voting Act

[sec. 24]; 4. RA 9006, The Fair Election Act; 5. RA 9369, The Law on Automated Elections. Electoral Sabotage: When the tampering, increase or decrease of votes or the refusal to credit the correct votes and/or to deduct tampered votes perpetrated on large scale or in substantial numbers, the penalty shall be Life Imprisonment. 3 Ways to Commit Electoral Sabotage: a. When the tampering, increase and/or the refusal

to credit the correct votes or to deduct tampered votes is/are committed in the election of a national elective office which is voted upon nationwide and the tampering, increase and/or decrease of votes, refusal to credit the correct votes or to deduct tampered votes adversely affect the results of the election to the said national office to the extent that losing candidate/s is/are made to appear the winner/s.

Thus, it refers only to the election of the President, Vice-President, Senators and Party-List Representatives.

b. Regardless of the elective office involved, when

the tampering, increase and/or decrease of votes committed or the refusal to credit the correct votes or to deduct tampered votes perpetrated, is accomplished in a single election document or in the transposition of the figure/results from one election document to another and involved in the said tampering increase and/or decrease or refusal to credit or refusal to deduct tampered votes exceed 5,000 votes, and that the same adversely affects the true results of the election.

c. Any and all other forms of tampering increases/s or decrease/s of votes perpetuated or in cases of refusal to credit or deduct the tampered votes, where the total votes involved exceed 10, 000 votes.

Any and all other persons or individuals determined to be in conspiracy or in connivance with the


members of the BEIs or BOCs involved, shall be meted the same penalty of life imprisonment.


LOCAL GOVERNMENT

GENERAL PRINCIPLES

………………………………………… Principles of Local Autonomy Constitutional Provisions:

a. The State shall ensure the autonomy of local governments (sec. 25, Art. II);

b. The territorial and political subdivisions shall enjoy local autonomy (sec. 2, Art. X).

The principle of local autonomy under the Constitution simply means ―decentralization‖; it does not make the local governments sovereign within the state or an ―imperium in imperio” (Basco vs. PAGCOR, 197 SCRA 52). Autonomy is either (Limbonas vs. Mangelin, 170 SCRA 786) –

a. Decentralization of power – the abdication of the national government of political power.

b. Decentralization of administration – consists merely in the delegation of administrative powers to broaden the base of governmental power.

Against the latter, there can be no valid constitutional challenge. The power to create includes the power to destroy. The power to grant still includes the power to recall or withhold. True, there are some notable innovations in the Constitution, like the direct conferment of the power to tax, which cannot now be withdrawn by mere statute. By large, however, national legislature is still the principal of LGUs, which cannot defy its will or modify or violate it. Ours is still a unitary form of government, not a federal state. Being so, any form of autonomy granted to LGUs will necessarily be limited within the extent allowed by the central authority (Lina vs. Pano, GR No. 129093, Aug. 30, 2001). LGUs are still subject to the power of control of Congress and the power of general supervision of the President (Judge Dadole vs. COA, GR No. 125350, Dec. 3, 2002). CORPORATION An artificial being created by operation of law, having the right of succession and the powers, attributes and properties expressly authorized by law or incident to its existence (sec. 2, Corporation Code). Classification according to purpose:

a. Public – Organized for the government of a portion of the State or rendering service in the public interest.

b. Private – Formed for some private purpose, benefit, aim or end.

c. Quasi-public – A private corporation that renders public service or supplies public wants.

TEST to determine whether a corporation is public The relationship of the corporation to the State; if created by the State as its own agency to help the State in carrying out its governmental functions, then it is public. Otherwise, it is private (Boy Scouts of the Phil. vs. COA, GR No. 177131, June 7, 2011). Classes of Public Corporations:

a. Quasi-corporation – created by the State for a narrow or limited purpose without powers and liabilities of self-governing corporations.

A quasi-public corporation is a specie of private corporations, but the qualifying factor is the type of service the former renders to the public; if it performs a public service, then it becomes a quasi-public corporation. (Philippine Society for the Prevention of Cruelty to Animals vs. COA, GR No. 169752, Sept. 25, 2007).

b. Municipal corporation – A body politic and corporate constituted by the incorporation of the inhabitants for the purpose of local government.

Municipal Corporations; Elements – 1) Legal creation or incorporation – the law

creating or authorizing the creation or incorporation of a municipal corporation.

2) Corporate name – the name by which the corporation shall be known.

Note: A municipal corporation may acquire a corporate name by usage, custom, and by prescription.

3) Inhabitants – the people residing in the territory of the corporation.

4) Territory – the land mass where the inhabitants reside, together with the internal and external waters, and the air space above the land and eaters.

Dual Nature of LGUs: [sec. 15, LGC]

a. A body politic –exercises powers as political subdivisions of the National Government.

b. Body Corporate – an entity representing the inhabitants of its territory


Dual Functions of LGUs: a. Public or governmental – it acts as an

agent of the State for the government of the territory and the inhabitants.

b. Private or proprietary. It acts as an agent of the community in the administration of local affairs. Acting as such, it acts as a separate entity, for its own purposes, and not as a subdivision of the State (Bara Lidasan vs. COMELEC, 21 SCRA 496).

Mere change of the sovereign authority does not necessarily dissolve the municipal corporation organized under the former sovereign. Otherwise, it loses the sight of dual character of municipal corporations, corporate and governmental. Hence, the municipal corporation stands liable to its indebtedness incurred prior to the change of sovereign (Villas vs. City of Manila, 42 Phil. 935, April 3, 1911).

Types of Municipal Corporations 1. Municipal corporations by prescription –

those that exercised their powers from time immemorial with a charter, which is presumed to have been lost or destroyed. Existence is presumed if:

i. The community has claimed and exercised corporate functions;

ii. With the knowledge and acquiescence of the legislature;

iii. Without objection or interruption for a period long enough to afford title by prescription.

2. De jure municipal corporations – those

created or recognized by operation of law. 3. De facto municipal corporations – those

where the people have organized themselves, under color of law, into ordinary municipal bodies exercising their powers, with their rights dependent quite as much as on acquiescence as on regularity of their origin.

Requisites: a. Valid law [or at least, voidable – or valid until

declared invalid or unconstitutional] authorizing incorporation;

b. Attempt in good faith to organize under it; c. Colorable compliance of the law; d. Assumption of corporate powers.

However, where the challenge was made nearly 30 years after the executive order creating the municipality was issued (San Narciso vs. Mendez, 239 SCRA 11), or where the municipality has been

in existence for all 16 years before the ruling in Pelaez vs. Auditor General, 251 SCRA – the ruling invalidating an EO authorizing the President to create LGUs, and various governmental acts throughout the years all indicate the State’s recognition of the existence of the municipal corporation, then it should be considered as a regular, de jure municipality (Municipality of Candijay, Bohol vs. CA, 251 SCRA 530). Attack against invalidity of incorporation. No collateral attack shall lie; an inquiry into legal existence of a municipal corporation is reserved to the State in a proceeding for quo warranto or other direct proceeding (Malabang vs. Benito, 27 SCRA 533)

THE LOCAL GOVERNMENT CODE [RA 7160]

…………………………………………

Effectivity: Section 536, LGC. 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.

Scope of Application: Section 4, LGC. Scope

of Application. - This Code shall apply to all

provinces, cities, municipalities, barangays,

and other political subdivisions as may be

created by law, and, to the extent herein

provided, to officials, offices, or agencies of

the national government.

Section 2, LGC. Declaration of Policy. -

(a) It is hereby declared the policy of the

State that the territorial and political

subdivisions of the State shall enjoy

genuine and meaningful local autonomy to

enable them to attain their fullest

development as self-reliant communities

and make them more effective partners in

the attainment of national goals. Toward

this end, the State shall provide for a more

responsive and accountable local

government structure instituted through a

system of decentralization whereby local

government units shall be given more

powers, authority, responsibilities, and

resources. The process of decentralization

shall proceed from the national government to the local government units.


(b) It is also the policy of the State to

ensure the accountability of local

government units through the institution of

effective mechanisms of recall, initiative and referendum.

(c) It is likewise the policy of the State to

require all national agencies and offices to

conduct periodic consultations with

appropriate local government units,

nongovernmental and people's

organizations, and other concerned sectors

of the community before any project or

program is implemented in their respective jurisdictions.

Section 3, LGC. Operative Principles of

Decentralization. - The formulation and

implementation of policies and measures on

local autonomy shall be guided by the following operative principles:

(a) There shall be an effective allocation

among the different local government units

of their respective powers, functions, responsibilities, and resources;

(b) There shall be established in every local

government unit an accountable, efficient,

and dynamic organizational structure and

operating mechanism that will meet the

priority needs and service requirements of

its communities;

(c) Subject to civil service law, rules and

regulations, local officials and employees

paid wholly or mainly from local funds shall

be appointed or removed, according to

merit and fitness, by the appropriate appointing authority;

(d) The vesting of duty, responsibility, and

accountability in local government units

shall be accompanied with provision for

reasonably adequate resources to discharge

their powers and effectively carry out their

functions: hence, they shall have the power

to create and broaden their own sources of

revenue and the right to a just share in

national taxes and an equitable share in the

proceeds of the utilization and development

of the national wealth within their respective areas;

(e) Provinces with respect to component

cities and municipalities, and cities and

municipalities with respect to component

barangays, shall ensure that the acts of

their component units are within the scope

of their prescribed powers and functions;

(f) Local government units may group

themselves, consolidate or coordinate their

efforts, services, and resources commonly beneficial to them;

(g) The capabilities of local government

units, especially the municipalities and

barangays, shall be enhanced by providing

them with opportunities to participate

actively in the implementation of national

programs and projects;

(h) There shall be a continuing mechanism

to enhance local autonomy not only by

legislative enabling acts but also by administrative and organizational reforms;

(i) Local government units shall share with

the national government the responsibility

in the management and maintenance of

ecological balance within their territorial

jurisdiction, subject to the provisions of this

Code and national policies;

(j) Effective mechanisms for ensuring the

accountability of local government units to

their respective constituents shall be

strengthened in order to upgrade continually the quality of local leadership;

(k) The realization of local autonomy shall

be facilitated through improved coordination

of national government policies and

programs an extension of adequate

technical and material assistance to less

developed and deserving local government units;

(l) The participation of the private sector in

local governance, particularly in the delivery

of basic services, shall be encouraged to

ensure the viability of local autonomy as an

alternative strategy for sustainable

development; and

(m) The national government shall ensure

that decentralization contributes to the

continuing improvement of the performance


of local government units and the quality of community life.

Salient Features of the LGC: 1. Devolution of certain national governmental

powers like – i. public works; ii. social welfare; iii. construction of school buildings and

facilities; iv. health services; v. agriculture; vi. tourism functions.

2. Increase in the national tax share for LGUs –

from 11% to 40% starting 1994; 3. increase in taxing powers.

Section 5. Rules of Interpretation, LGC. -

In the interpretation of the provisions of this Code, the following rules shall apply:

(a) Any provision on a power of a local

government unit shall be liberally

interpreted in its favor, and in case of

doubt, any question thereon shall be

resolved in favor of devolution of powers

and of the lower local government unit. Any

fair and reasonable doubt as to the

existence of the power shall be interpreted

in favor of the local government unit

concerned;

(b) In case of doubt, any tax ordinance or

revenue measure shall be construed strictly

against the local government unit enacting

it, and liberally in favor of the taxpayer. Any

tax exemption, incentive or relief granted

by any local government unit pursuant to

the provisions of this Code shall be

construed strictly against the person

claiming it.

(c) The general welfare provisions in this

Code shall be liberally interpreted to give

more powers to local government units in

accelerating economic development and

upgrading the quality of life for the people in the community;

(d) Rights and obligations existing on the

date of effectivity of this Code and arising

out of contracts or any other source of

presentation involving a local government

unit shall be governed by the original terms

and conditions of said contracts or the law

in force at the time such rights were vested; and

(e) In the resolution of controversies arising

under this Code where no legal provision or

jurisprudence applies, resort may be had to

the customs and traditions in the place where the controversies take place.

MUNICIPAL CORPORATIONS IN THE

PHILIPPINES

…………………………………………

Section 1, Art. X. The territorial and political

subdivisions of the Republic of the Philippines

are the provinces, cities, municipalities, and

barangays. There shall be autonomous

regions in Muslim Mindanao and the Cordilleras as hereinafter provided.

CREATION, CONVERSION, DIVISION, MERGER AND CONSOLIDATION, AND DISSOLUTION OF

MUNICIPAL CORPORATIONS

…………………………………………

Section 6, LGC. Authority to Create Local

Government Units. - A local government

unit may be created, divided, merged,

abolished, or its boundaries substantially

altered either by law enacted by Congress in

the case of a province, city, municipality, or

any other political subdivision, or by

ordinance passed by the sangguniang

panlalawigan or sangguniang panlungsod

concerned in the case of a barangay located

within its territorial jurisdiction, subject to

such limitations and requirements prescribed

in this Code.

Note: Only Congress can create provinces and cities because the creation of provinces and cities necessarily includes the creation of legislative districts, a power only Congress can exercise under section 5, Article VI and section 3, of the Ordinance appended to the Constitution. Thus, MMA Act 201 enacted by the ARMM Regional Assembly and creating the Province of Shariff Kabunsuan, is VOID (Sema vs. COMELEC, GR No. 177597, July 16, 2008).

Requisites: [in general] Section 10, Art. X. No

province, city, municipality, or barangay may

be created, divided, merged, abolished, or its

boundary substantially altered, except in


accordance with the criteria established in the

local government code and subject to

approval by a majority of the votes cast in a

plebiscite in the political units directly

affected.

a. Section 7, LGC. Creation and Conversion.

- As a general rule, the creation of a local

government unit or its conversion from

one level to another level shall be based

on verifiable indicators of viability and

projected capacity to provide services, to

wit:

(a) Income. - It must be sufficient,

based on acceptable standards, to

provide for all essential government

facilities and services and special

functions commensurate with the size of its population, as expected of the local government unit concerned;

Municipality 2.5 million

City 100 million (RA 9009,

and not including the IRA) Highly Urbanized City 50 million

Province 20 million

Note: When Congress enacted the LGC in 1991, it provided for quantifiable indicators of economic viability for the creation of local government units – income, population, and land area. It is clear that when Congress passed the cityhood laws in question the municipalities covered by said laws are to be exempt from the coverage of RA 9009, which change the income requirement for the conversion into cities from 20 million to 100 million. RA 9009 took effect on June 30, 2001 and the laws in question sought to exempt from the coverage of the former the municipalities that had pending conversion bills before the passage of RA 9009, including municipalities covered by the assailed cityhood laws. The municipalities covered b y the 16 cityhood laws have complied with the income requirement set by the LGC and in this case, the LGC must be the basis for the income requirement and not RA 9009 as the assailed laws clearly exempted the concerned municipalities from the coverage of the latter. As a result, RA 9009, and, by necessity, the LGC, were amended, not by repeal but by way of express exemptions being embodied in the exemption clauses. The SC ruled that the requirement set by RA 9009 was arbitrary as the figure of 100 million was set with no research or empirical data. While the Constitution mandates that the creation of LGUs must comply with the criteria laid down in the LGC, it

cannot be justified to insist that the Constitution must have to yield to every amendment to the LGC despite such amendment imminently producing effects contrary to the original thrusts of the LGC to promote autonomy, decentralization, countryside development, and the concomitant national growth (League of Cities of the Philippines vs. COMELEC, GR No. 176951, Feb. 15, 2011).

(b) Population. - It shall be determined

as the total number of inhabitants within

the territorial jurisdiction of the local government unit concerned; and

Barangay a) in MM or other MPS or HUCs ; b) others

a) 5,000 b) 2,000

Municipality 25,000

City 150, 000

HUC 200,000

Province 250,000

(c) Land Area. - It must be contiguous,

unless it comprises two or more islands

or is separated by a local government

unit independent of the others; properly

identified by metes and bounds with

technical descriptions; and sufficient to

provide for such basic services and

facilities to meet the requirements of its

populace.

Compliance with the foregoing indicators

shall be attested to by the Department

of Finance (DOF), the National Statistics

Office

Municipality 50 sq. kms

City 100 sq. kms.

Province 2,000 sq. kms

Note. GRANT the Intervenors’ Motion for Reconsideration of the Resolution dated May 12, 2010. The May 12, 2010 Resolution is RECONSIDERED and SET ASIDE. The provision in Article 9(2) of the Rules and Regulations Implementing the Local Government Code of 1991 stating, "The land area requirement shall not apply where the proposed province is composed of one (1) or more islands," is declared VALID. Accordingly, Republic Act No. 9355 (An Act Creating the Province of Dinagat Islands) is declared as VALID and CONSTITUTIONAL, and the proclamation of the Province of Dinagat Islands and the election of the officials thereof are declared VALID (Navarro vs.


Executive Secretary, GR No. 180050, April 12, 2011).

b. Section 10, LGC. Plebiscite

Requirement. - No creation, division,

merger, abolition, or substantial alteration

of boundaries of local government units

shall take effect unless approved by a

majority of the votes cast in a plebiscite

called for the purpose in the political unit

or units directly affected. Said plebiscite

shall be conducted by the Commission on

Elections (COMELEC) within one hundred

twenty (120) days from the date of

effectivity of the law or ordinance

effecting such action, unless said law or ordinance fixes another date.

Note: the plebiscite for creating a new province should include the participation of the residents of the mother province in order to conform to the constitutional requirement (Tan vs. COMELEC, 142 SCRA 727).

There is no conflict between the power of the President to merge administrative regions with the constitutional provision requiring plebiscite in the merger of LGUs because the requirement of the plebiscites in a merger expressly applied only to provinces, cities, municipalities or barangays, not administrative regions (Abbas vs. COMELEC, GR No. 89651, Nov. 10, 1989).

The Specifics on the Manner of Creation of

LGUs: A. The Barangay –

Section 384. Role of the Barangay. - As the

basic political unit, the barangay serves as

the primary planning and implementing unit

of government policies, plans, programs,

projects, and activities in the community, and

as a forum wherein the collective views of the

people may be expressed, crystallized and

considered, and where disputes may be amicably settled.

Section 385. Manner of Creation. - A

barangay may be created, divided, merged,

abolished, or its boundary substantially

altered, by law or by an ordinance of the

sangguniang panlalawigan or panlungsod,

subject to approval by a majority of the votes

cast in a plebiscite to be conducted by the

COMELEC in the local government unit or

units directly affected within such period of

time as may be determined by the law or

ordinance creating said barangay. In the case

of the creation of barangays by the

sangguniang panlalawigan, the

recommendation of the sangguniang bayan concerned shall be necessary.

Section 386. Requisites for Creation. -

(a) A barangay may be created out of a

contiguous territory which has a population of

at least two thousand (2,000) inhabitants as

certified by the National Statistics Office

except in cities and municipalities within

Metro Manila and other metropolitan political

subdivisions or in highly urbanized cities

where such territory shall have a certified

population of at least five thousand (5,000)

inhabitants: Provided, That the creation

thereof shall not reduce the population of the

original barangay or barangays to less than the minimum requirement prescribed herein.

To enhance the delivery of basic services in

the indigenous cultural communities,

barangays may be created in such

communities by an Act of Congress, notwithstanding the above requirement.

(b) The territorial jurisdiction of the new

barangay shall be properly identified by

metes and bounds or by more or less

permanent natural boundaries. The territory

need not be contiguous if it comprises two (2) or more islands.

(c) The governor or city mayor may prepare a

consolidation plan for barangays, based on

the criteria prescribed in this Section, within

his territorial jurisdiction. The plan shall be

submitted to the sangguniang panlalawigan or

sangguniang panlungsod concerned for appropriate action.

In the case of municipalities within the

Metropolitan Manila Area and other

metropolitan political subdivisions, the

barangay consolidation plan shall be prepared

and approved by the sangguniang bayan concerned.


B. The Municipality –

Section 440. Role of the Municipality. - The

municipality, consisting of a group of

barangays, serves primarily as a general

purpose government for the coordination and

delivery of basic, regular and direct services

and effective governance of the inhabitants within its territorial jurisdiction.


municipality may be created, divided,

merged, abolished, or its boundary

substantially altered only by an Act of

Congress and subject to the approval by a

majority of the votes cast in a plebiscite to be

conducted by the COMELEC in the local

government unit or units directly affected.

Except as may otherwise be provided in the

said Act, the plebiscite shall be held within

one hundred twenty (120) days from the date of its effectivity.

Section 442. Requisites for Creation. -

(a) A municipality may be created if it has an

average annual income, as certified by the

provincial treasurer, of at least Two million

five hundred thousand pesos (P2,500,000.00)

for the last two (2) consecutive years based

on the 1991 constant prices; a population of

at least twenty-five thousand (25,000)

inhabitants as certified by the National

Statistics Office; and a contiguous territory of

at least fifty (50) square kilometers as

certified by the Lands Management Bureau:

Provided, That the creation thereof shall not

reduce the land area, population or income of

the original municipality or municipalities at

the time of said creation to less than the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-

created municipality shall be properly

identified by metes and bounds. The

requirement on land area shall not apply

where the municipality proposed to be

created is composed of one (1) or more

islands. The territory need not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include

the income accruing to the general fund of

the municipality concerned, exclusive of

special funds, transfers and non-recurring income.

(d) Municipalities existing as of the date of

the effectivity of this Code shall continue to

exist and operate as such. Existing municipal

districts organized pursuant to presidential

issuances or executive orders and which have

their respective set of elective municipal

officials holding office at the time of the

effectivity of this Code shall henceforth be

considered as regular municipalities.

C. The City –

Section 448. Role of the City. - The city,

consisting of more urbanized and developed

barangays. serves as a general purpose

government for the coordination and delivery

of basic, regular, and direct services and

effective governance of the inhabitants within

its territorial jurisdiction.

Section 449. Manner of Creation. - A city

may be created, divided, merged, abolished,

or its boundary substantially altered, only by

an Act of Congress, and subject to approval

by a majority of the votes cast in a plebiscite

to be conducted by the COMELEC in the local

government unit or units directly affected.

Except as may otherwise be provided in such

Act. the plebiscite shall be held within one

hundred twenty (120) days from the date of its effectivity.

Section 450. Requisites for Creation.

(a) A municipality or a cluster of barangays

may be converted into a component city if it

has an average annual income, as certified by

the Department of Finance, of at least Twenty

million (P20,000,000.00) [now 100 million –

RA 9009] for the last two (2) consecutive

years based on 1991 constant prices, and if it has either of the following requisites:

(i) a contiguous territory of at least one

hundred (100) square kilometers, as

certified by the Lands Management Bureau; or

(ii) a population of not less than one

hundred fifty thousand (150,000)

inhabitants, as certified by the National Statistics Office:


Provided, That, the creation thereof shall

not reduce the land area, population, and

income of the original unit or units at the

time of said creation to less than the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-

created city shall be properly identified by

metes and bounds. The requirement on land

area shall not apply where the city proposed

to be created is composed of one (1) or more

islands. The territory need not be contiguous if it comprises two (2) or more islands.


the income accruing to the general fund,

exclusive of specific funds, transfers, and

non-recurring income.

Section 451. Cities, Classified. - A city may

either be component or highly urbanized:

Provided, however, That the criteria

established in this Code shall not affect the

classification and corporate status of existing cities.

component cities whose charters prohibit their

voters from voting for provincial elective

officials. Independent component cities shall

be independent of the province. Independent component cities are those

Section 452. Highly Urbanized Cities.

(a) Cities with a minimum population of two

hundred thousand (200,000) inhabitants as

certified by the National Statistics Office, and

within the latest annual income of at least

Fifty Million Pesos (P50,000,000.00) based on

1991 constant prices, as certified by the city

treasurer, shall be classified as highly urbanized cities.

(b) Cities which do not meet above

requirements shall be considered component

cities of the province in which they are

geographically located. If a component city is

located within the boundaries of two (2) or

more provinces, such city shall be considered

a component of the province of which it used

to be a municipality.

(c) Qualified voters of highly urbanized cities

shall remain excluded from voting for elective provincial officials.

Unless otherwise provided in the Constitution

or this Code, qualified voters of independent

component cities shall be governed by their

respective charters, as amended, on the participation of voters in provincial elections.

Qualified voters of cities who acquired the

right to vote for elective provincial officials

prior to the classification of said cities as

highly-urbanized after the ratification of the

Constitution and before the effectivity of this

Code, shall continue to exercise such right.

Section 453. Duty to Declare Highly

Urbanized Status. - It shall be the duty of the

President to declare a city as highly urbanized

within thirty (30) days after it shall have met

the minimum requirements prescribed in the

immediately preceding section, upon proper

application therefor and ratification in a plebiscite by the qualified voters therein.

D. The Province –

Section 459. Role of the Province. - The

province, composed of cluster of

municipalities, or municipalities and

component cities, and as a political and

corporate unit of government, serves as

dynamic mechanism for developmental

processes and effective governance of local

government units within its territorial jurisdiction.


province may be created, divided, merged,

abolished, or its boundary substantially

altered, only by an Act of Congress and

subject to approval by a majority of the votes

cast in a plebiscite to be conducted by the

COMELEC in the local government unit or

units directly affected. The plebiscite shall be

held within one hundred twenty (120) days

from the date of effectivity of said Act, unless otherwise provided therein.

Section 461. Requisites for Creation.

(a) A province may be created if it has an

average annual income, as certified by the

Department of Finance, of not less than

Twenty million pesos (P20,000,000.00) based

on 1991 constant prices and either of the following requisites:


(i) a contiguous territory of at least two

thousand (2,000) square kilometers, as

certified by the Lands Management Bureau; or

(ii) a population of not less than two

hundred fifty thousand (250,000)

inhabitants as certified by the National

Statistics Office:

Provided, That, the creation thereof shall

not reduce the land area, population, and

income of the original unit or units at the

time of said creation to less than the minimum requirements prescribed herein.

(b) The territory need not be contiguous if it

comprise two (2) or more islands or is

separated by a chartered city or cities which

do not contribute to the income of the province.


the income accruing to the general fund,

exclusive of special funds, trust funds,

transfers and non-recurring income.

Note: RA 9355 [Creating the Province of Dinagat] was declared not unconstitutional by the SC even if it did not comply with the population and land area requirements set by the LGC (Navarro vs. Executive Sec., GR No. 180050, April 12, 2011).

BEGINNING OF CORPORATE EXISTENCE

Section 14, LGC. Beginning of Corporate

Existence. - When a new local government

unit is created, its corporate existence shall

commence upon the election and qualification

of its chief executive and a majority of the

members of its sanggunian, unless some

other time is fixed therefor by the law or

ordinance creating it.

Note: A city comes into existence as a legal entity upon approval of the law creating it. However, before the same can act as a public corporation or juridical entity, it is necessary that the officials thereof be appointed or elected in order that it may transact business (Mejia vs. Balolong, GR No. L-1925, Sept. 16, 1948).

DIVISION and MERGER

Section 8, LGC. Division and Merger. -

Division and merger of existing local

government units shall comply with the same

requirements herein prescribed for their

creation: Provided, however, That such

division shall not reduce the income,

population, or land area of the local

government unit or units concerned to less

than the minimum requirements prescribed in

this Code: Provided, further, That the income

classification of the original local government

unit or units shall not fall below its current classification prior to such division.

The income classification of local government

units shall be updated within six (6) months

from the effectivity of this Code to reflect the

changes in their financial position resulting

from the increased revenues as provided herein.

Effects of Annexation/Consolidation of Municipal Corporations: a. On the legal existence of the territory – Unless

otherwise provided for by law, the annexation of one municipal corporation to another will dissolve the annexed territory. It shall become part of the annexing corporation and will fall under the jurisdiction of the latter.

b. On the law and ordinances of the annexed corporation – In the absence of any provision of law to the contrary, when a territory is annexed to a municipal corporation, it shall become subject to all the laws and ordinances by which the annexing territory is governed.

c. On the right of officers or employees of the annexed or consolidated territory to continue to hold their offices – Subject to what the legislature may provide upon annexation, the officers and employees of the annexed or consolidated territory shall terminate their official relation with their offices.

d. On the property of the annexed territory – The annexing territory shall acquire title to the property of the annexed territory at the time of annexation without compensation unless the annexing statute provides otherwise. Where the annexed territory, however, forms part of a municipality from which it is taken, the legislature may provide for the payment of compensation for the indebtedness incurred on account of the property taken.


With regard to public buildings and improvements located in the annexed territory, the annexing territory is not required to pay for said buildings or improvements as they have been paid for by the annexed territory. It would be otherwise if there exists an indebtedness of said buildings in which case, the annexing territory may be required to share in the payment of said indebtedness.

e. On debts and obligations of the annexed

territory – it has been stated that debts and obligations of a municipal corporation contracted before its annexation to another territory shall be assumed by the annexing territory in the absence of any provision to the contrary. The same rule applies of consolidation where the consolidating municipal corporation is held responsible for the indebtedness and obligations incurred by the territories which are consolidated.

ABOLITION

Section 9, LGC. Abolition of Local

Government Units. - A local government unit

may be abolished when its income,

population, or land area has been irreversibly

reduced to less than the minimum standards

prescribed for its creation under Book III of

this Code, as certified by the national

agencies mentioned in Section 7 hereof to

Congress or to the sangguniang concerned, as the case may be.

The law or ordinance abolishing a local

government unit shall specify the province,

city, municipality, or barangay with which the

local government unit sought to be abolished will be incorporated or merged.

Note: Congress has the absolute power to alter and dissolve a municipal corporation by –

a. Dividing a municipal corporation into two or more separate municipalities;

b. Fixing, altering or changing the boundaries of municipal corporations;

c. Annexing one municipal corporation to another;

d. Repealing its Charter; e. Merging or consolidating two or more

separate municipal corporation into one.

GENERAL POWERS and ATTRIBUTES of LGUs

………………………………………… Powers in general [Sources]: 1) The Constitution – sec. 25, Art. II; secs. 5, 6, 7

Art. X; 2) Statutes – like the LGC; 3) The Charter [particularly of cities]; Execution of Powers a) Where statute prescribes the manner of

exercise, the procedure must be followed. b) Where the statute is silent, LGUs have

discretion to select reasonable means and methods of exercise.

1. POLICE POWER The General Welfare Clause. The statutory grant of police power to Local Government Units.

Section 16, LGC. General Welfare. - Every

local government unit shall exercise the

powers expressly granted, those necessarily

implied therefrom, as well as powers

necessary, appropriate, or incidental for its

efficient and effective governance, and those

which are essential to the promotion of the

general welfare. Within their respective

territorial jurisdictions, local government units

shall ensure and support, among other things,

the preservation and enrichment of culture,

promote health and safety, enhance the right

of the people to a balanced ecology,

encourage and support the development of

appropriate and self-reliant scientific and

technological capabilities, improve public

morals, enhance economic prosperity and

social justice, promote full employment

among their residents, maintain peace and

order, and preserve the comfort and

convenience of their inhabitants.

Limitations on the exercise of powers: 1) Express grant of law; 2) Exercisable only within territorial limits of the

LGU, except for the protection of water supply; 3) Equal protection clause; 4) Due process clause; 5) Must not be contrary to the Constitution and the

laws Requisites for a valid ordinance (Magtajas vs. Pryce, GR No. 111097, July 20, 1994) –

i. Must not contravene the Constitution or any statute;

ii. Must not be unfair or oppressive; iii. Must not be partial or discriminatory;


iv. Must not prohibit, but may regulate trade; v. Must not be unreasonable; vi. Must be general in application and

consistent with the public policy. A local government may, in the exercise of police power, order the closure of a bank for failure to secure the appropriate mayor’s permit and business licenses (Rural Bank of Makati vs. Municipality of Makati, GR No. 150763, July 2, 2004). A local government unit may not regulate the subscriber rates charged by CATV operators within its territorial jurisdiction, but such being the power of the NTC. However, the LGU cannot prescribe regulations over CATV in the exercise of general welfare clause (Batangas CATV vs. CA, GR No. 138810, Sept. 29, 2004). An ordnance ―banning the shipment of all live fish and lobster outside Puerto Princesa for a limited period‖ as well as an ordinance ―prohibiting the catching, gathering, possessing, buying, selling and shipment of live marine coral-dwelling of aquatic organisms for a limited period were held to be valid exercise of police power (Tano vs. Socrates, GR No. 119294, Aug 21, 1997). An ordinance imposing 30 centavos police inspection fee per sack of cassava flour produced and sipped out of the municipality was held invalid. It is not a license fee, but a tax, unjust and unreasonable since the only service of the municipality is to verify from the drivers of the trucks the number of sacks loaded (Matalin Coconut vs. Municipal Council of Mabanag, 143 SCRA 404). A license fee for non-useful occupations, although a bit exorbitant, is valid as it was intended to discourage such occupations (PTOP vs. Municipal Board of Manila). The power to issue permits to operate cockpits is vested in the Mayor, in line with the policy of local autonomy (PGC vs. IAC, 146 SCRA 294).

See also sec. 6, PD 449. An ordinance prohibiting the operation of night-clubs, was declared invalid, because of its prohibitory, not merely regulatory in character (De la Cruz vs. Paras, 123 SCRA 569). An ordinance requiring owners of commercial cemeteries to reserve 6% of their burial lots for burial grounds of paupers was held invalid; it was not an exercise of police power, but of eminent domain (Quezon City vs. Ericta, 122 SCRA 759).

An ordinance prohibiting barber shops from conducting massage business in another room was held valid, at it was passed for the protection of public morals (Velasco vs. Villegas, 120 SCRA 568). An ordinance penalizing persons for charging full payment for admission of children in movie houses was invalid exercise of the police power for being unreasonable and oppressive on business of petitioners (Balacuit vs. CFI of Agusan del Note, 163 182). BASIC SERVICES FACILITIES

Section 17. Basic Services and Facilities. -

(a) Local government units shall endeavor

to be self-reliant and shall continue

exercising the powers and discharging the

duties and functions currently vested upon

them. They shall also discharge the

functions and responsibilities of national

agencies and offices devolved to them

pursuant to this Code. Local government

units shall likewise exercise such other

powers and discharge such other functions

and responsibilities as are necessary,

appropriate, or incidental to efficient and

effective provisions of the basic services and facilities enumerated herein.

For the detailed enumeration, see par. b. DEVOLUTION The act by which the national government confers powers and authority upon various local government units to perform specific functions and responsibilities. 2. LOCAL TAXING POWERS

Constitutional Basis: Section 5, Art. X. Each

local government unit shall have the power to

create its own sources of revenues and to

levy taxes, fees and charges subject to such

guidelines and limitations as the Congress

may provide, consistent with the basic policy

of local autonomy. Such taxes, fees, and

charges shall accrue exclusively to the local

governments.

Section 18, LGC. Power to Generate and

Apply Resources. - Local government units shall have –

1) the power and authority to establish an

organization that shall be responsible for


the efficient and effective implementation

of their development plans, program

objectives and priorities;

2) to create their own sources of revenues

and to levy taxes, fees, and charges which

shall accrue exclusively for their use and

disposition and which shall be retained by

them;

3) to have a just share in national taxes

which shall be automatically and directly

released to them without need of any

further action;

4) to have an equitable share in the proceeds

from the utilization and development of

the national wealth and resources within

their respective territorial jurisdictions

including sharing the same with the

inhabitants by way of direct benefits;

5) to acquire, develop, lease, encumber,

alienate, or otherwise dispose of real or

personal property held by them in their

proprietary capacity and to apply their

resources and assets for productive,

developmental, or welfare purposes, in

the exercise or furtherance of their

governmental or proprietary powers and

functions and thereby ensure their

development into self-reliant communities

and active participants in the attainment

of national goals.

For detailed discussion on Local Government Taxation, see separate Topic on Taxation Law Reviewer. See also secs 128 to 383, Book II, RA 7160 [Local Taxation and Fiscal Matters]

Fundamental Principles Governing Local Taxation

Section 130. Fundamental Principles. - The

following fundamental principles shall govern

the exercise of the taxing and other revenue-

raising powers of local government units:

(a) Taxation shall be uniform in each local government unit;

(b) Taxes, fees, charges and other impositions shall:

(1) be equitable and based as far as

practicable on the taxpayer's ability to

pay;

(2) be levied and collected only for public purposes;

(3) not be unjust, excessive, oppressive,

or confiscatory;

(4) not be contrary to law, public policy,

national economic policy, or in the restraint of trade;

(c) The collection of local taxes, fees,

charges and other impositions shall in no

case be let to any private person;

(d) The revenue collected pursuant to the

provisions of this Code shall inure solely to

the benefit of, and be subject to the

disposition by, the local government unit

levying the tax, fee, charge or other

imposition unless otherwise specifically provided herein; and,

(e) Each local government unit shall, as far

as practicable, evolve a progressive system

of taxation.

The exercise by LGUs of the power to tax is ordained by the present Constitution; only guidelines and limitations that may be established by Congress can define and limit such power of local governments. It may not be limited by mere administrative order (Philippine Petroleum Corporation vs. Municipality of Pilillia, Rizal. 198 SCRA 82).

Congress has the power of control over LGUs. If congress can grant a municipal corporation the power to tax certain matters, it can also provide for exemptions (Basco vs. Pagcor, 197 SCRA 52).

Since, however, the power to tax is subject to limitations imposed by Congress, exemptions granted by Congress after RA 7160 bind local governments (Smart Communications vs. City of Davao, GR No. 155491).

Sec. 187, RA 7160, which authorizes the Sec. of Justice to review the constitutionality or legality of tax ordinance, and if warranted, to revoke it on either or both grounds, is valid, and does not confer the power of control over LGUs. He cannot substitute his own judgment for that of the LGU (Drilon vs. Lim, GR No. 112497, Aug. 4, 1994).


Local Fiscal Administration

Section 305. Fundamental Principles. - The

financial affairs, transactions, and operations

of local government units shall be governed by the following fundamental principles:

(a) No money shall be paid out of the local

treasury except in pursuance of an appropriations ordinance or law;

(b) Local government funds and monies shall be spent solely for public purposes;

(c) Local revenue is generated only from

sources expressly authorized by law or

ordinance, and collection thereof shall at all times be acknowledged properly;

(d) All monies officially received by a local

government officer in any capacity or on

any occasion shall be accounted for as local

funds, unless otherwise provided by law;

(e) Trust funds in the local treasury shall

not be paid out except in fulfillment of the

purpose for which the trust was created or

the funds received;

(f) Every officer of the local government

unit whose duties permit or require the

possession or custody of local funds shall be

properly bonded, and such officer shall be

accountable and responsible for said funds

and for the safekeeping thereof in conformity with the provisions of law;

(g) Local governments shall formulate

sound financial plans, and local budgets

shall be based on functions, activities, and projects, in terms of expected results;

(h) Local budget plans and goals shall, as

far as practicable, be harmonized with

national development plans, goals, and

strategies in order to optimize the utilization

of resources and to avoid duplication in the use of fiscal and physical resources;

(i) Local budgets shall operationalize approved local development plans;

(j) Local government units shall ensure that

their respective budgets incorporate the

requirements of their component units and

provide for equitable allocation of resources

among these component units;

(k) National planning shall be based on local

planning to ensure that the needs and

aspirations of the people as articulated by

the local government units in their

respective local development plans are

considered in the formulation of budgets of national line agencies or offices;

(l) Fiscal responsibility shall be shared by all

those exercising authority over the financial

affairs, transactions, and operations of the local government units; and

(m) The local government unit shall

endeavor to have a balanced budget in each

fiscal year of operation.

Share of LGUs in the Internal Revenue

Section 284. Allotment of Internal Revenue

Taxes. - Local government units shall have a

share in the national internal revenue taxes

based on the collection of the third fiscal year preceding the current fiscal year as follows:

(a) On the first year of the effectivity of this Code, thirty percent (30%); (b) On the second year, thirty-five percent (35%); and

(c) On the third year and thereafter, forty

percent (40%).

Provided, That in the event that the national

government incurs an unmanageable public

sector deficit, the President of the Philippines

is hereby authorized, upon the

recommendation of Secretary of Finance,

Secretary of Interior and Local Government

and Secretary of Budget and Management,

and subject to consultation with the presiding

officers of both Houses of Congress and the

presidents of the "liga", to make the

necessary adjustments in the internal

revenue allotment of local government units

but in no case shall the allotment be less than

thirty percent (30%) of the collection of

national internal revenue taxes of the third

fiscal year preceding the current fiscal year:

Provided, further, That in the first year of the

effectivity of this Code, the local government


units shall, in addition to the thirty percent

(30%) internal revenue allotment which shall

include the cost of devolved functions for

essential public services, be entitled to

receive the amount equivalent to the cost of

devolved personal services.

Section 285. Allocation to Local Government

Units. - The share of local government units

in the internal revenue allotment shall be collected in the following manner:

(a) Provinces - Twenty-three percent

(23%);

(b) Cities - Twenty-three percent (23%);

(c) Municipalities - Thirty-four percent

(34%); and

(d) Barangays - Twenty percent (20%)

Provided, however, That the share of each

province, city, and municipality shall be

determined on the basis of the following formula:

(a) Population - Fifty percent (50%);

(b) Land Area - Twenty-five percent

(25%); and

(c) Equal sharing - Twenty-five percent (25%)

Provided, further, That the share of each

barangay with a population of not less than

one hundred (100) inhabitants shall not be

less than Eighty thousand (P80,000.00) per

annum chargeable against the twenty percent

(20%) share of the barangay from the

internal revenue allotment, and the balance

to be allocated on the basis of the following formula:

(a) On the first year of the effectivity of this Code:

(1) Population - Forty percent (40%); and (2) Equal sharing - Sixty percent (60%)

(b) On the second year: (1) Population - Fifty percent (50%); and (2) Equal sharing - Fifty percent (50%)

(c) On the third year and thereafter:

(1) Population - Sixty percent (60%); and

(2) Equal sharing - Forty

percent (40%).

Provided, finally, That the financial

requirements of barangays created by local

government units after the effectivity of this

Code shall be the responsibility of the local

government unit concerned.

Section 286. Automatic Release of Shares. -

(a) The share of each local

government unit shall be released,

without need of any further action,

directly to the provincial, city,

municipal or barangay treasurer, as

the case may be, on a quarterly basis

within five (5) days after the end of

each quarter, and which shall not be

subject to any lien or holdback that

may be imposed by the national government for whatever purpose.

(b) Nothing in this Chapter shall be

understood to diminish the share of

local government units under existing laws.

Section 287. Local Development Projects. -

Each local government unit shall appropriate

in its annual budget no less than twenty

percent (20%) of its annual internal revenue

allotment for development projects. Copies of

the development plans of local government

units shall be furnished the Department of Interior and Local Government.

3. THE POWER OF EMINENT DOMAIN

Section 19, LGC. Eminent Domain. - A

local government unit may, through its chief

executive and acting pursuant to an

ordinance, exercise the power of eminent

domain for public use, or purpose or welfare

for the benefit of the poor and the landless,

upon payment of just compensation, pursuant

to the provisions of the Constitution and

pertinent laws: Provided, however, That the

power of eminent domain may not be

exercised unless a valid and definite offer has

been previously made to the owner, and such


offer was not accepted: Provided, further,

That the local government unit may

immediately take possession of the property

upon the filing of the expropriation

proceedings and upon making a deposit with

the proper court of at least fifteen percent

(15%) of the fair market value of the

property based on the current tax declaration

of the property to be expropriated: Provided,

finally, That, the amount to be paid for the

expropriated property shall be determined by

the proper court, based on the fair market

value at the time of the taking of the

property.

For the Constitutional limitations on the exercise of eminent domain, see Fundamental Powers of the State. Additional limitations when exercised by LGUs:

i. exercised by the chief executive, acting pursuant to a valid ordinance;

The municipal mayor cannot file an expropriation case on the strength of a resolution passed by the Sanggunian Bayan because what is required is an ordinance (Municipality of Parañaque vs. V.M. Realty Corp., 292 SCRA 676).

ii. for public use or purpose or welfare, for the benefit of the poor and the landless;

iii. only after a valid and definite offer had been made to, and not accepted, by the owner.

Determination of Just Compensation: Section 19 expressly provides that just compensation shall be determined as of the time of actual taking and not as of the of the filing of the complaint (City of Cebu vs. Dedamo, GR No. 142971, May 7, 2002) Notes: A municipality has the power to exercise the

right of eminent domain. Thus, a Sanggunian Panlalawigan is without authority to disapprove a municipal resolution [ordinance] authorizing the mayor to initiate expropriation proceedings (Moday vs. CA, Feb. 20, 1997).

The municipal mayor cannot file an expropriation case on the strength of a resolution passed by the Sanggunian Bayan because what is required is an ordinance (Municipality of Parañaque vs. V.M. Realty Corp., 292 SCRA 676).

Private property already devoted to public use can still be subject of expropriation by Congress but not by LGUs.

The promulgation of the ordinance authorizing the local chief executive to exercise the power must be promulgated prior to the filing of the complaint for eminent domain with the proper court, and not after the court shall have determined the amount of just compensation to which the defendant is entitled. However, the decision does not preclude the respondent city from enacting the necessary ordinance and thereafter reinstituting expropriation proceedings, for so long as it has complied with all other legal requirements (Heirs of Suguitan vs. City of Mandaluyong, GR No. 135087, March 14, 2000).

The order of priority for acquisition of lands to be

used for socialized housing shall apply only to urban areas and urbanizable areas – a. Urban area: refers to all cities regardless of

their population density and to municipalities with a population density of at least 500 persons per square-kilometers (sec.2, RA 7279).

b. Urbanizable area: refers to sites and lands which, considering present characteristics and prevailing conditions, display marked and great potential or becoming urban areas within the period of 5 years (sec. 2, RA 7279).

Neither the LGC nor the CARL requires an LGU

to secure approval of the DAR as a condition precedent to institute the necessary expropriation proceedings (Province of Camarines Sur vs. CA, GR No. 103125, May 17, 1987).

The proper party to appeal the dismissal of expropriation proceedings is the municipality which filed the expropriation case. The petitioner barangay cannot continue the expropriation case (Barangay Matictic vs. Elbinias, GR No. L-48769, Feb. 27, 1987).

4. POWER TO RECLASSIFY LANDS

Section 20, LGC. Reclassification of Lands. -

(a) A city or municipality may, through an

ordinance passed by the sanggunian after

conducting public hearings for the purpose,

authorize the reclassification of agricultural

lands and provide for the manner of their


utilization or disposition in the following

cases: (1) when the land ceases to be

economically feasible and sound for

agricultural purposes as determined by the

Department of Agriculture or (2) where the

land shall have substantially greater economic

value for residential, commercial, or industrial

purposes, as determined by the sanggunian

concerned: Provided, That such

reclassification shall be limited to the

following percentage of the total agricultural

land area at the time of the passage of the ordinance:

(1) For highly urbanized and independent

component cities, fifteen percent (15%);

(2) For component cities and first to the

third class municipalities, ten percent (10%); and

(3) For fourth to sixth class municipalities,

five percent (5%): Provided, further, That

agricultural lands distributed to agrarian

reform beneficiaries pursuant to Republic

Act Numbered Sixty-six hundred fifty-seven

(R.A. No. 6657). otherwise known as "The

Comprehensive Agrarian Reform Law", shall

not be affected by the said reclassification

and the conversion of such lands into other

purposes shall be governed by Section 65 of said Act.

(b) The President may, when public interest

so requires and upon recommendation of the

National Economic and Development

Authority, authorize a city or municipality to

reclassify lands in excess of the limits set in the next preceding paragraph.

(c) The local government units shall, in

conformity with existing laws, continue to

prepare their respective comprehensive land

use plans enacted through zoning ordinances

which shall be the primary and dominant

bases for the future use of land resources:

Provided. That the requirements for food

production, human settlements, and industrial

expansion shall be taken into consideration in

the preparation of such plans.

(d) Where approval by a national agency is

required for reclassification, such approval

shall not be unreasonably withheld. Failure to

act on a proper and complete application for

reclassification within three (3) months from

receipt of the same shall be deemed as

approval thereof.

(e) Nothing in this Section shall be construed

as repealing, amending, or modifying in any manner the provisions of R.A. No. 6657.

Note: LGUs need not obtain the approval of the Department of Agriculture to convert or reclassify lands from agricultural to non-agricultural use (Fortich vs. Corona, GR No. 131457, Nov. 17, 1998). DAR is required to use the comprehensive land use plans and accompanying ordinances of local Sanggunian as primary references in evaluating applications for land use conversion (DAR vs. Saranggani Agricultural Co., GR No. 16554, Jan. 24, 2007).

5. THE POWER OF CHANGING NAMES OF LGUs, etc.

Section 13. Naming of Local Government

Units and Public Places, Streets and Structures. –

(a) The sangguniang panlalawigan may, in

consultation with the Philippine Historical

Commission (PHC), change the name of the following within its territorial jurisdiction:

(1) Component cities and municipalities,

upon the recommendation of the sanggunian concerned;

(2) Provincial roads, avenues, boulevards,

thoroughfares, and bridges;

(3) Public vocational or technical schools

and other post-secondary and tertiary schools;

(4) Provincial hospitals, health centers, and other health facilities; and

(5) Any other public place or building

owned by the provincial government.

(b) The sanggunian of highly urbanized cities

and of component cities whose charters

prohibit their voters from voting for provincial

elective officials, hereinafter referred to in this

Code as independent component cities, may,


in consultation with the Philippine Historical

Commission, change the name of the

following within its territorial jurisdiction:

(1) City barangays, upon the

recommendation of the sangguniang barangay concerned;

(2) City roads, avenues, boulevards, thoroughfares, and bridges;

(3) Public elementary, secondary and

vocational or technical schools,

community colleges and non-chartered colleges;

(4) City hospitals, health centers and other health facilities; and

(5) Any other public place or building

owned by the city government.

© The sanggunians of component cities and

municipalities may, in consultation with the

Philippine Historical Commission, change the

name of the following within its territorial

jurisdiction:

(1) City and municipal barangays, upon

recommendation of the sangguniang barangay concerned;

(2) City, municipal and barangay roads,

avenues, boulevards, thoroughfares, and

bridges;

(3) City and municipal public elementary,

secondary and vocational or technical

schools, post- secondary and other tertiary schools;

(4) City and municipal hospitals, health

centers and other health facilities; and

(5) Any other public place or building owned by the municipal government.

(d) None of the foregoing local government

units, institutions, places, or buildings shall

be named after a living person, nor may a

change of name be made unless for a

justifiable reason and, in any case, not

oftener than once every ten (10) years. The

name of a local government unit or a public

place, street or structure with historical,

cultural, or ethnic significance shall not be

changed, unless by a unanimous vote of the

sanggunian concerned and in consultation with the PHC.

(e) A change of name of a public school shall

be made only upon the recommendation of

the local school board concerned.

(f) A change of name of public hospitals,

health centers, and other health facilities

shall be made only upon the

recommendation of the local health board concerned.

(g) The change of name of any local

government unit shall be effective only upon

ratification in a plebiscite conducted for the

purpose in the political unit directly affected.

(h) In any change of name, the Office of the

President, the representative of the

legislative district concerned, and the Bureau of Posts shall be notified.

6. THE POWER OF CLOSURE and OPENING of ROADS

Section 21, LGC. Closure and Opening of

Roads. -

(a) A local government unit may, pursuant to

an ordinance, permanently or temporarily

close or open any local road, alley, park, or

square falling within its jurisdiction: Provided,

however, That in case of permanent closure,

such ordinance must be approved by at least

two-thirds (2/3) of all the members of the

sanggunian, and when necessary, an

adequate substitute for the public facility that is subject to closure is provided.

(b) No such way or place or any part thereof

shall be permanently closed without making

provisions for the maintenance of public

safety therein. A property thus permanently

withdrawn from public use may be used or

conveyed for any purpose for which other real

property belonging to the local government

unit concerned may be lawfully used or

conveyed: Provided, however, That no

freedom park shall be closed permanently


without provision for its transfer or relocation to a new site.

(c) Any national or local road, alley, park, or

square may be temporarily closed during an

actual emergency, or fiesta celebrations,

public rallies, agricultural or industrial fairs, or

an undertaking of public works and highways,

telecommunications, and waterworks

projects, the duration of which shall be

specified by the local chief executive

concerned in a written order: Provided,

however, That no national or local road, alley,

park, or square shall be temporarily closed for

athletic, cultural, or civic activities not

officially sponsored, recognized, or approved by the local government unit concerned.

(d) Any city, municipality, or barangay may,

by a duly enacted ordinance, temporarily

close and regulate the use of any local street,

road, thoroughfare, or any other public place

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.

A municipality has the authority to prepare and adopt a land use map. Promulgate a zoning ordinance, and close any municipal road (Pilapil vs.CA, 212 SCRA 33).

One whose property is not located on the closed section of the street ordered closed by the Provincial Board of Catanduanes has no right to compensation for the closure if he still has reasonable access to the general system of streets (Cabrera vs. CA, 195 SCRA 314).

The power to vacate is discretionary on the part of the Sanggunian. When properties are no longer intended for public use, the same may be used or conveyed for any lawful purpose, and may even become patrimonial and thus be the subject of a common contract (Cebu Oxygen and Acetylene Co. vs. Bercilles, 66 SCRA 481).

THE city Mayor of Manila cannot, by himself, withdraw Padre Rada as a public market. The establishment and maintenance of public markets is among the legislative powers of the City of Manila; hence, the need of a joint action by the Sanggunian and the City mayor (Cruz vs. CA, 153 SCRA 142).

7. LOCAL LEGISLATIVE POWER Note: The power of LGUs to legislate and enact ordinances and resolutions is merely a delegated power coming from Congress (Lina vs. Pano, GR No. 129093, Aug. 30, 2001). Products of Legislative Action:

a. Ordinance – prescribes a permanent rule of conduct; effect of a law; and requires 3

rd

reading. b. Resolution – of temporary character; a mere

expression of sentiment; and does not require 3

rd reading.

Requisites for a valid ordinance (Magtajas vs. Pryce, GR No. 111097, July 20, 1994) –

i. Must not contravene the Constitution or any statute;

ii. Must not be unfair or oppressive; iii. Must not be partial or discriminatory; iv. Must not prohibit, but may regulate trade; v. Must not be unreasonable; vi. Must be general in application and

consistent with the public policy. It is a heresy to suggest that the LGUs can undo the acts of Congress, from which they have derived their power and negate by mere ordinance the mandate of the statute (Ibid).

Section 48, LGC. Local Legislative Power. -

Local legislative power shall be exercised by

the sangguniang panlalawigan for the

province; the sangguniang panlungsod for the

city; the sangguniang bayan for the

municipality; and the sangguniang barangay for the barangay.

Section 49, LGC. Presiding Officer. -

(a) The vice-governor shall be the presiding

officer of the sangguniang panlalawigan; the

city vice-mayor, of the sangguniang

panlungsod; the municipal vice-mayor, of the

sangguniang bayan; and the punong

barangay, of the sangguniang barangay. The presiding officer shall vote only to break a tie.

(b) In the event of the inability of the regular

presiding officer to preside at a sanggunian

session, the members present and

constituting a quorum shall elect from among

themselves a temporary presiding officer. He

shall certify within ten (10) days from the

passage of ordinances enacted and


resolutions adopted by the sanggunian in the session over which he temporarily presided.

Section 50, LGC. Internal Rules of

Procedure. -

(a) On the first regular session following the

election of its members and within ninety (90)

days thereafter, the sanggunian concerned

shall adopt or update its existing rules of

procedure.

(b) The rules of procedure shall provided for the following:

(1) The organization of the sanggunian

and the election of its officers as well as

the creation of standing committees which

shall include, but shall not be limited to,

the committees on appropriations, women

and family, human rights, youth and

sports development, environmental

protection, and cooperatives; the general

jurisdiction of each committee; and the

election of the chairman and members of

each committee;

(2) The order and calendar of business for each session;

(3) The legislative process;

(4) The parliamentary procedures which

include the conduct of members during sessions;

(5) The discipline of members for

disorderly behavior and absences without

justifiable cause for four (4) consecutive

sessions, for which they may be censured,

reprimanded, or excluded from the

session, suspended for not more than

sixty (60) days, or expelled: Provided,

That the penalty of suspension or

expulsion shall require the concurrence of

at least two-thirds (2/3) vote of all the

sanggunian members: Provided, further,

That a member convicted by final

judgment to imprisonment of at least one

(1) year for any crime involving moral

turpitude shall be automatically expelled from the sanggunian; and

(6) Such other rules as the sanggunian

may adopt.

Section 51, LGC. Full Disclosure of Financial

and Business Interests of Sanggunian

Members. -

(a) Every sanggunian member shall, upon

assumption to office, make a full disclosure of

his business and financial interests, or

professional relationship or any relation by

affinity or consanguinity within the fourth civil

degree, which he may have with any person,

firm, or entity affected by any ordinance or

resolution under consideration by the

sanggunian of which he is a member, which

relationship may result in conflict of interest. Such relationship shall include:

(1) Ownership of stock or capital, or

investment, in the entity or firm to which

the ordinance or resolution may apply; and

(2) Contracts or agreements with any

person or entity which the ordinance or

resolution under consideration may affect.

In the absence of a specific constitutional

or statutory provision applicable to this

situation, "conflict of interest" refers in

general to one where it may be

reasonably deduced that a member of a

sanggunian may not act in the public

interest due to some private, pecuniary,

or other personal considerations that may

tend to affect his judgment to the prejudice of the service or the public.

(b) The disclosure required under this Act

shall be made in writing and submitted to the

secretary of the sanggunian or the secretary

of the committee of which he is a member.

The disclosure shall, in all cases, form part of

the record of the proceedings and shall be

made in the following manner:

(1) Disclosure shall be made before the

member participates in the deliberations

on the ordinance or resolution under

consideration: Provided, That, if the

member did not participate during the

deliberations, the disclosure shall be made

before voting on the ordinance or

resolution on second and third readings; and


(2) Disclosure shall be made when a

member takes a position or makes a

privilege speech on a matter that may

affect the business interest, financial

connection, or professional relationship

described herein.

Section 52, LGC. Sessions. -

(a) On the first day of the session

immediately following the election of its

members, the sanggunian shall, by

resolution, fix the day, time, and place of its

regular sessions. The minimum numbers of

regular sessions shall be once a week for the

sangguniang panlalawigan, sangguniang

panlungsod, and sangguniang bayan, and

twice a month for the sangguniang barangay.

(b) When public interest so demands, special

sessions may be called by the local chief

executive or by a majority of the members of the sanggunian.

(c) All sanggunian sessions shall be open to

the public unless a closed-door session is

ordered by an affirmative vote of a majority

of the members present, there being a

quorum, in the public interest or for reasons

of security, decency, or morality. No two (2)

sessions, regular or special, may be held in a single day.

(d) In the case of special sessions of the

sanggunian, a written notice to the members

shall be served personally at the member's

usual place of residence at least twenty-four (24) hours before the special session is held.

Unless otherwise concurred in by two-thirds

(2/3) vote of the sanggunian members

present, there being a quorum, no other

matters may be considered at a special session except those stated in the notice.

(e) Each sanggunian shall keep a journal and

record of its proceedings which may be

published upon resolution of the sanggunian concerned.

Section 53, LGC. Quorum. -

(a) A majority of all the members of the

sanggunian who have been elected and

qualified shall constitute a quorum to transact

official business. Should a question of quorum

be raised during a session, the presiding

officer shall immediately proceed to call the

roll of the members and thereafter announce the results.

(b) Where there is no quorum, the presiding

officer may declare a recess until such time as

a quorum is constituted, or a majority of the

members present may adjourn from day to

day and may compel the immediate

attendance of any member absent without

justifiable cause by designating a member of

the sanggunian to be assisted by a member

or members of the police force assigned in

the territorial jurisdiction of the local

government unit concerned, to arrest the

absent member and present him at the

session.

(c) If there is still no quorum despite the

enforcement of the immediately preceding

subsection, no business shall be transacted.

The presiding officer, upon proper motion

duly approved by the members present, shall

then declare the session adjourned for lack of quorum.

Section 54, LGC. Approval of Ordinances. -

(a) Every ordinance enacted by the

sangguniang panlalawigan, sangguniang

panlungsod, or sangguniang bayan shall be

presented to the provincial governor or city or

municipal mayor, as the case may be. If the

local chief executive concerned approves the

same, he shall affix his signature on each and

every page thereof; otherwise, he shall veto it

and return the same with his objections to the

sanggunian, which may proceed to reconsider

the same. The sanggunian concerned may

override the veto of the local chief executive

by two-thirds (2/3) vote of all its members,

thereby making the ordinance or resolution effective for all legal intents and purposes.

(b) The veto shall be communicated by the

local chief executive concerned to the

sanggunian within fifteen (15) days in the

case of a province, and ten (10) days in the

case of a city or a municipality; otherwise, the

ordinance shall be deemed approved as if he had signed it.


(c) Ordinances enacted by the sangguniang

barangay shall, upon approval by the majority

of all its members, be signed by the punong barangay.

Note: The Punong Barangay has no veto power. In fact, he presides the sessions of the Sanggunian Barangay. Thus, he may not, therefore, veto his own act (Review Lecture)

Section 55. Veto Power of the Local Chief

Executive. -

(a) The local chief executive may veto any

ordinance of the sanggunian panlalawigan,

sangguniang panlungsod, or sanggunian

bayan on the ground that it is ultra vires or

prejudicial to the public welfare, stating his

reasons therefor in writing.

(b) The local chief executive, except the

punong barangay, shall have the power to

veto any particular item or items of an

appropriations ordinance, an ordinance or

resolution adopting a local development plan

and public investment program, or an

ordinance directing the payment of money or

creating liability. In such a case, the veto

shall not affect the item or items which are

not objected to. The vetoed item or items

shall not take effect unless the sanggunian

overrides the veto in the manner herein

provided; otherwise, the item or items in the

appropriations ordinance of the previous year

corresponding to those vetoed, if any, shall

be deemed reenacted.

(c) The local chief executive may veto an

ordinance or resolution only once. The

sanggunian may override the veto of the local

chief executive concerned by two-thirds (2/3)

vote of all its members, thereby making the

ordinance effective even without the approval of the local chief executive concerned.

NOTE: where petitioner was charged with falsification of a public document for approving a resolution which purportedly appropriated money to pay for the terminal leave of 2 employees when actually no such resolution was passed, the petitioner argued that his signature is on the resolution is merely ministerial. The SC disagreed. The grant of veto power accords the mayor the discretion whether or not to approve the resolution (De los Reyes vs. Sandiganbayan, GR No. 121215, Nov. 13, 1997).

Section 56, LGC. Review of Component

City and Municipal Ordinances or

Resolutions by the Sangguniang Panlalawigan.

(a) Within three (3) days after approval, the

secretary to the sanggunian panlungsod or

sangguniang bayan shall forward to the

sangguniang panlalawigan for review, copies

of approved ordinances and the resolutions

approving the local development plans and

public investment programs formulated by the local development councils.

(b) Within thirty (30) days after the receipt of

copies of such ordinances and resolutions, the

sangguniang panlalawigan shall examine the

documents or transmit them to the provincial

attorney, or if there be none, to the provincial

prosecutor for prompt examination. The

provincial attorney or provincial prosecutor

shall, within a period of ten (10) days from

receipt of the documents, inform the

sangguniang panlalawigan in writing of his

comments or recommendations, which may

be considered by the sangguniang panlalawigan in making its decision.

(c) If the sangguniang panlalawigan finds that

such an ordinance or resolution is beyond the

power conferred upon the sangguniang

panlungsod or sangguniang bayan concerned,

it shall declare such ordinance or resolution

invalid in whole or in part. The sangguniang

panlalawigan shall enter its action in the

minutes and shall advise the corresponding

city or municipal authorities of the action it

has taken.

(d) If no action has been taken by the

sangguniang panlalawigan within thirty (30)

days after submission of such an ordinance or

resolution, the same shall be presumed

consistent with law and therefore valid.

Note: In an opinion rendered by the DILG (Opn No. 65-1994), the thirty-day period within which the sangguniang panlalawigan (SP) shall have to act on an ordinance/resolution subject of review shall be counted from the date the subject matter was included in the calendar of business, i.e., not from the receipt of the said ordinance or resolution by the SP. Reason for this is that the SP being a collegial body, it can only act on the subject ordinance/resolution when the same is deliberated upon by the body in a regular session. It is believed


that the opinion equally applies to review of ordinances by the sangguniang panlungsod/bayan.

Section 57, LGC. Review of Barangay

Ordinances by the Sangguniang Panlungsod or Sangguniang Bayan. -

(a) Within ten (10) days after its enactment,

the sangguniang barangay shall furnish copies

of all barangay ordinances to the sangguniang

panlungsod or sangguniang bayan concerned

for review as to whether the ordinance is

consistent with law and city or municipal

ordinances.

(b) If the sangguniang panlungsod or

sangguniang bayan, as the case may be, fails

to take action on barangay ordinances within

thirty (30) days from receipt thereof, the

same shall be deemed approved.

(c) If the sangguniang panlungsod or

sangguniang bayan, as the case may be,

finds the barangay ordinances inconsistent

with law or city or municipal ordinances, the

sanggunian concerned shall, within thirty (30)

days from receipt thereof, return the same

with its comments and recommendations to

the sangguniang barangay concerned for

adjustment, amendment, or modification; in

which case, the effectivity of the barangay

ordinance is suspended until such time as the

revision called for is effected.

Section 58, LGC. Enforcement of

Disapproved Ordinances or Resolutions. - Any

attempt to enforce any ordinance or any

resolution approving the local development

plan and public investment program, after the

disapproval thereof, shall be sufficient ground

for the suspension or dismissal of the official

or employee concerned.

Section 59, LGC. Effectivity of Ordinances or Resolutions. -

(a) Unless otherwise stated in the ordinance

or the resolution approving the local

development plan and public investment

program, the same shall take effect after ten

(10) days from the date a copy thereof is

posted in a bulletin board at the entrance of

the provincial capitol or city, municipal, or

barangay hall, as the case may be, and in at

least two (2) other conspicuous places in the local government unit concerned.

(b) The secretary to the sanggunian

concerned shall cause the posting of an

ordinance or resolution in the bulletin board

at the entrance of the provincial capitol and

the city, municipal, or barangay hall in at

least two (2) conspicuous places in the local

government unit concerned not later than five (5) days after approval thereof.

The text of the ordinance or resolution shall

be disseminated and posted in Filipino or

English and in the language understood by

the majority of the people in the local

government unit concerned, and the

secretary to the sanggunian shall record such

fact in a book kept for the purpose, stating the dates of approval and posting.

(c) The gist of all ordinances with penal

sanctions shall be published in a newspaper of

general circulation within the province where

the local legislative body concerned belongs.

In the absence of any newspaper of general

circulation within the province, posting of

such ordinances shall be made in all

municipalities and cities of the province where the sanggunian of origin is situated.

(d) In the case of highly urbanized and

independent component cities, the main

features of the ordinance or resolution duly

enacted or adopted shall, in addition to being

posted, be published once in a local

newspaper of general circulation within the

city: Provided, That in the absence thereof

the ordinance or resolution shall be published

in any newspaper of general circulation.

Local Initiative and Referendum

Section 120. Local Initiative Defined. - Local

initiative is the legal process whereby the

registered voters of a local government unit

may directly propose, enact, or amend any ordinance.

Section 121. Who May Exercise. - The power

of local initiative and referendum may be

exercised by all registered voters of the

provinces, cities, municipalities, and barangays.


Section 122. Procedure in Local Initiative. -

(a) Not less than one thousand (1,000)

registered voters in case of provinces and

cities, one hundred (100) in case of

municipalities, and fifty (50) in case of

barangays, may file a petition with the

sanggunian concerned proposing the

adoption, enactment, repeal, or amendment of an ordinance.

(b) If no favorable action thereon is taken by

the sanggunian concerned within thirty (30)

days from its presentation, the proponents,

through their duly authorized and registered

representatives, may invoke their power of

initiative, giving notice thereof to the

sanggunian concerned.

(c) The proposition shall be numbered serially

starting from Roman numeral I. The

COMELEC or its designated representative

shall extend assistance in the formulation of

the proposition.

(d) Two (2) or more propositions may be submitted in an initiative.

(e) Proponents shall have ninety (90) days in

case of provinces and cities, sixty (60) days in

case of municipalities, and thirty (30) days in

case of barangays, from notice mentioned in

subsection (b) hereof to collect the required

number of signatures. (f) The petition shall be

signed before the election registrar. or his

designated representatives, in the presence of

a representative of the proponent, and a

representative of the sanggunian concerned

in a public place in the local government unit,

as the case may be. Stations for collecting

signatures may be established in as many places as may be warranted.

(g) Upon the lapse of the period herein

provided, the COMELEC, through its office in

the local government unit concerned, shall

certify as to whether or not the required

number of signatures has been obtained.

Failure to obtain the required number defeats the proposition.

(h) If the required number of signatures is

obtained, the COMELEC shall then set a date

for the initiative during which the proposition

shall be submitted to the registered voters in

the local government unit concerned for their

approval within sixty (60) days from the date

of certification by the COMELEC, as provided

in subsection (g) hereof, in case of provinces

and cities, forty-five (45) days in case of

municipalities, and thirty (30) days in case of

barangays. The initiative shall then be held on

the date set, after which the results thereof

shall be certified and proclaimed by the

COMELEC.

Section 123. Effectivity of Local Propositions.

- If the proposition is approved by a majority

of the votes cast, it shall take effect fifteen

(15) days after certification by the COMELEC

as if affirmative action thereon had been

made by the sanggunian and local chief

executive concerned. If it fails to obtain said

number of votes, the proposition is considered defeated.

Section 124. Limitations on Local Initiative. -

(a) The power of local initiative shall

not be exercised more than once a year.

(b) Initiative shall extend only to

subjects or matters which are within

the legal powers of the sanggunian to enact.

(c) If at any time before the initiative

is held, the sanggunian concerned

adopts in toto the proposition

presented and the local chief executive

approves the same, the initiative shall

be cancelled. However, those against

such action may, if they so desire,

apply for initiative in the manner herein provided.

Section 125. Limitations upon Sanggunians.

- Any proposition or ordinance approved

through the system of initiative and

referendum as herein provided shall not be

repealed, modified or amended by the

sanggunian concerned within six (6) months

from the date of the approval thereof, and

may be amended, modified or repealed by the

sanggunian within three (3) years thereafter

by a vote of three-fourths (3/4) of all its

members: Provided, That in case of

barangays, the period shall be eighteen (18) months after the approval thereof.


Section 126. Local Referendum Defined. -

Local referendum is the legal process

whereby the registered voters of the local

government units may approve, amend or

reject any ordinance enacted by the

sanggunian.

The local referendum shall be held under the

control and direction of the COMELEC within

sixty (60) days in case of provinces and cities,

forty-five (45) days in case of municipalities

and thirty (30) days in case of barangays.

The COMELEC shall certify and proclaim the results of the said referendum.

Section 127. Authority of Courts. - Nothing

in this Chapter shall prevent or preclude the

proper courts from declaring null and void any

proposition approved pursuant to this Chapter

for violation of the Constitution or want of

capacity of the sanggunian concerned to enact the said measure.

8. THE CORPORATE POWERS OF LGUs

Section 22,LGC. Corporate Powers. -

(a) Every local government unit, as a corporation, shall have the following powers:

(1) To have continuous succession in its corporate name;

(2) To sue and be sued;

Note: The rule is that suit is commenced by the local chief executive, upon authority of the Sanggunian, except when the City Councilors, by themselves and as representatives of or on behalf of the City, bring action to prevent unlawful disbursement of city funds (City Council of Cebu vs. Cuizon, 47 SCRA 325). But the municipality cannot be represented by a private attorney. Only the Provincial Fiscal or Municipal Attorney can represent a province or municipality in lawsuits. This is mandatory. The Fiscal’s refusal to represent the municipality is not a legal justification for employing the services of private counsel; the municipality should request the Sec. of Justice to appoint an Acting Provincial Fiscal in place of the one who declined to handle the case (Municipality of Pililla, Rizal vs. CA, 233 SCRA 484).

Exception: A private counsel may be employed if the Provincial Fiscal [Attorney] is disqualified to represent it [when there is conflict of interest] and the fact of such disqualification must appear on record (Ibid). However, if the suit is filed against a local official which could result in personal liability, the latter may engage the services of a private counsel (Mancenido vs. CA, GR No. 118605, April 2000). The legality of the representation of an unauthorized counsel may be raised at any stage of the proceedings. However, the municipal attorney may validly adopt the work already performed in good faith by a private lawyer, provided that no injustice is committed against the adverse party and that no compensation ahs been paid to the private counsel (Ramos vs. CA, 269 SCRA 34).

(3) To have and use a corporate seal;

(4) To acquire and convey real or personal

property;

The LGU may acquire real or personal, tangible or intangible property, in any manner allowed by law.

The LGU may alienate only patrimonial property, upon proper authority (City of Naga vs. CA, 1998).

In the absence of proof that the property was acquired through corporate or private funds, the presumption is that it came from the State upon the creation of the municipality and, thus, is governmental or public property (Salas vs. Jarencio, 48 SCRA 734).

A public plaza is beyond the commerce of man, and cannot be the subject of lease or other contractual undertaking (Villanueva vs. Castaneda, 154 SCRA 142).

Town plazas are properties of public dominion; they cannot be occupied temporarily, but only for the duration of an emergency (Espiritu vs. Municipal Council of Pozorrubio, Pangasinan, GR No. L-11014, Jan. 21, 1958).

Public streets or thoroughfares are property for public use, outside the commerce of man, and may not be the subject of lease or other contracts (Dacanay vs. Asistio, 208 SCRA 404).

Procurement of supplies is made through competitive public bidding:


Except: a) the amount is minimal where a personal

canvass of at least 3 responsible merchants in the locality may be made by the Committee on Awards, or

b) In case of emergency purchases allowed under PD 526.

(5) To enter into contracts; and

Requisites of a valid municipal contract: i. LGU has the express, implied or inherent

power to enter into a particular contract; ii. The contract is entered into by the proper

department, board, committee, officer or agent;

iii. The contract must comply with certain substantive requirements;

iv. The contract must comply with the formal requirements of written contracts.

v. in case entered into by the local chief executive on behalf of the LGU, prior authorization by the Sanggunian concerned is needed.

Ultra-vires Contract When a contract is entered into without compliance with the 1

st and the 3

rd requisites, the same is ultra

vires and is null and void. Such contract cannot be ratified or validated. Ratification of defective municipal contracts is possible only when there is non-compliance with the 2

nd and or 4

th requirements

above. Ratification may be express or implied. Breach of contractual obligations by the city of Manila renders the City liable in damages. The principle of respondeat superior applies (City of Manila vs. IAC, 179 SCRA 428).

(6) To exercise such other powers as are

granted to corporations, subject to the

limitations provided in this Code and other laws.

(b) Local government units may continue

using, modify, or change their existing

corporate seals: Provided, That newly

established local government units or those

without corporate seals may create their own

corporate seals which shall be registered with

the Department of the Interior and Local

Government: Provided, further, That any

change of corporate seal shall also be

registered as provided hereon.

(c) Unless otherwise provided in this Code, no

contract may be entered into by the local

chief executive in behalf of the local

government unit without prior authorization

by the sanggunian concerned. A legible copy

of such contract shall be posted at a

conspicuous place in the provincial capitol or

the city, municipal or barangay hall.

(d) Local government units shall enjoy full

autonomy in the exercise of their proprietary

functions and in the limitations provided in this Code and other applicable laws.

9. POWER TO NEGOTIATE AND SECURE GRANTS

Section 23, LGC. Authority to Negotiate and

Secure Grants. - Local chief executives may,

upon authority of the sanggunian, negotiate

and secure financial grants or donations in

kind, in support of the basic services or

facilities enumerated under Section 17 hereof,

from local and foreign assistance agencies

without necessity of securing clearance or

approval therefor from any department,

agency, or office of the national government

of from any higher local government unit:

Provided, That projects financed by such

grants or assistance with national security

implications shall be approved by the national

agency concerned: Provided, further, That

when such national agency fails to act on the

request for approval within thirty (30) days

from receipt thereof, the same shall be

deemed approved.

The local chief executive shall, within thirty

(30) days upon signing of such grant

agreement or deed of donation, report the

nature, amount, and terms of such assistance

to both Houses of Congress and the President.

MUNICIPAL LIABILITY

………………………………………… Specific Provisions of law making LGUs liable:

a) Section 24, LGC. Liability for Damages. -

Local government units and their officials

are not exempt from liability for death or injury to persons or damage to property.


b) Art. 2189, NCC. Provinces, cities and

municipalities shall be liable for damages

for the death of, or injuries suffered by,

any person by reason of the defective

condition of roads, streets, bridges, public

buildings, and other public works under

their control or supervision.

The City of Manila was held liable for damages when a person fell into an open manhole in the streets of the city (City of Manila vs. Teotico, 22 SCRA 267). Despite a management and operating contract with Asiatic Integrated Corporation over the Sta. Ana Public Market, the City of Manila is solidarily liable for injuries sustained by an individual who stepped on a rusted nail while the market was flooded because of the admission of the mayor that the city has control and supervision (Jimenez vs. City of Manila, 150 SCRA 510). Liability attaches even if the road is not owned by the LGU, as long as it exercises control and supervision over the said road (Guilatco vs. City of Dagupan, 171 SCRA 382).

c) The State is responsible in like manner

when it acts through a special agent; but

not when the damage has been caused by

the official to whom the task done

properly pertains, in which case what is

provided in Article 2176 shall be

applicable (art. 2180 [6th par.], NCC)

d) Art. 34, NCC. When a member of a city

or municipal police force refuses or fails to

render aid or protection to any person in

case of danger to life or property, such

peace officer shall be primarily liable for

damages, and the city or municipality

shall be subsidiarily responsible therefor.

The civil action herein recognized shall be

independent of any criminal proceedings,

and a preponderance of evidence shall

suffice to support such action.

RULES on municipal liability for tort: a) Governmental Function – it is NOT liable.

The prosecution of crimes is a governmental function, and thus, the LGU may not be held liable therefor (Palafox vs. Province of Ilocos, 102 Phil. 1186). The municipality was not held liable for torts committed by a regular employee, even if the truck used belong to the municipality inasmuch

as the employee was discharging governmental public works or functions (Municipality of San Fernando vs. Fermi, 195 SCRA 692 [1991]).

b) Proprietary Functions – it is liable. Operation of a ferry service is a proprietary function. Since the municipality is negligent, for having awarded the franchise to operator notwithstanding a previous grant of the franchise to the plaintiff, it is liable (Mendoza vs. de Leon, 33 Phil. 508 [1916]). Holding a town fiesta is a proprietary function. The municipality was held liable for death of a member of the zarzuela group when the stage collapsed, under the principle of respondeat superior (Torio vs. Fontanilla, 85 SCRA 599 [1978]). Operation of a public cemetery is a proprietary function of the City of Manila. The City is liable for tortuous acts of its employees, under the principle of respondeat superior (City of Manila vs. IAC, supra). Inasmuch as there is no finding that malice or bad faith attended the illegal dismissal and refusal to reinstate respondent by her superior officers, the latter cannot be held personally accountable for her back salaries. The municipal government, therefore, should disburse funds to answer for her claims resulting from the wrongful dismissal (Municipality of Jasaan vs. Gentallan, GR No. 154961, May 9, 2005).

Liability for Violation of Law. Where the municipality closed a part of a municipal street without indemnifying the person prejudice thereby, the municipality can be held liable for damages (Abella vs. Municipality of Naga, 90 Phil. 385). Lack of funds does not excuse the municipality from the obligation of paying the statutory minimum wage. Payment of minimum wage is a mandatory statutory obligation of the municipality (Racho vs. Municipality of Ilagan, Isabela). The mayor, was held in contempt and fine, with a warning, because of the refusal of the mayor to abide by a TRO issued by the Court (Moday vs. CA, 243 SCRA 152).

Liability for Contracts Rule: A municipal corporation, like an ordinary person, is liable on a contract it enters into, provided


that the contract is intra vires. If the contract is ultra vires, the municipal corporation is not liable. A private individual who deals with a municipal corporation is imputed constructive knowledge of the extent of the power or authority of the municipal corporations to enter into contracts. Ordinarily, therefore, the doctrine of estoppel does not lie against the municipal corporation (Favis vs. Municipality of Sabangan, No. L-26522, Feb. 27, 1969). Rationale: To allow otherwise, would be to allow indirectly, what cannot be done directly. Exception: The Doctrine of Implied Municipal Liability A municipality may become obligated upon an implied contract to pay the reasonable value of the benefits accepted or appointed by it as to which it has the general power to contract. (Province of Cebu vs. IAC, 147 SCRA 447 [1987]). The doctrine applies to all cases where money or other property of a party is received under such circumstances that the general law, independent of an express contract, implies an obligation to do justice with respect to the same. Thus, the Province of Cebu cannot set up the plea that the contract is ultra vires and still retain benefits thereunder. It is then stopped to question its validity for the purpose of denying answerability.

Inter-Governmental Relations

…………………………………………

Section 25. National Supervision over Local

Government Units. -

(a) Consistent with the basic policy on local

autonomy, the President shall exercise

general supervision over local government

units to ensure that their acts are within the


The President shall exercise supervisory

authority directly over provinces, highly

urbanized cities, and independent component

cities; through the province with respect to

component cities and municipalities; and

through the city and municipality with respect to barangays.

Note: Like the LGUs, the Liga ng mga Barangay is not subject to control by the President or his

alter ego. Supervising officers merely see to it that the rules are followed but he, himself does not lay down such rules, nor does he have the discretion to modify or replace them (The National Liga vs. Paredes, GR No. 130775, Sept. 27, 2004).

The Secretary of Local Government [DILG Sec] may not annul the election of officers of a federation of barangay officials as such would constitute control and therefore in excess of executive supervisory powers (Taule vs. Sec. Santos, GR No. 90336, Aug. 12, 1991).

The Sec. of Justice does not exercise control when he passes judgment on the constitutionality or legality of a tax ordinance or revenue measure pursuant to section 187, LGC (Drilon vs. Lim, GR No. 112497, Aug. 4, 1994).

The COA committed graveabuse of discretion in

affirming the disallowance of 3, 670, 00 for premium paid for the hospitalization and health care insurance benefits granted by the Province of Negros Occidental to its officials and employees. LGUs are not under the control of the President or executive officers (Province of negros vs. COA, GR No. 182574, Sept. 28, 2010).

(b) National agencies and offices with project

implementation functions shall coordinate

with one another and with the local

government units concerned in the discharge

of these functions. They shall ensure the

participation of local government units both in

the planning and implementation of said

national projects.

(c) The President may, upon request of the

local government unit concerned, direct the

appropriate national agency to provide

financial, technical, or other forms of

assistance to the local government unit. Such

assistance shall be extended at no extra cost to the local government unit concerned.

(d) National agencies and offices including


with field units or branches in a province, city,

or municipality shall furnish the local chief

executive concerned, for his information and

guidance, monthly reports including duly

certified budgetary allocations and expenditures.


Section 26. Duty of National Government

Agencies in the Maintenance of Ecological

Balance. - It shall be the duty of every

national agency or government-owned or

controlled corporation authorizing or involved

in the planning and implementation of any

project or program that may cause pollution,

climatic change, depletion of non-renewable

resources, loss of crop land, rangeland, or

forest cover, and extinction of animal or plant

species, to consult with the local government

units, nongovernmental organizations, and

other sectors concerned and explain the goals

and objectives of the project or program, its

impact upon the people and the community in

terms of environmental or ecological balance,

and the measures that will be undertaken to

prevent or minimize the adverse effects thereof.

Section 27. Prior Consultations Required. -

No project or program shall be implemented

by government authorities unless the

consultations mentioned in Sections 2 (c) and

26 hereof are complied with, and prior

approval of the sanggunian concerned is

obtained: Provided, That occupants in areas

where such projects are to be implemented

shall not be evicted unless appropriate

relocation sites have been provided, in

accordance with the provisions of the Constitution.

Relations with the Philippine National Police

Section 28. Powers of Local Chief Executives

over the Units of the Philippine National

Police. - The extent of operational supervision

and control of local chief executives over the

police force, fire protection unit, and jail

management personnel assigned in their

respective jurisdictions shall be governed by

the provisions of Republic Act Numbered

Sixty-nine hundred seventy-five (R.A. No.

6975), otherwise known as "The Department

of the Interior and Local Government Act of

1990", and the rules and regulations issued pursuant thereto.

Note: The Mayor has no power to appoint; he has only the limited power of selecting one from among the list of eligibles recommended by the Police Regional Director to be named the Chief of Police. The Mayor cannot require the Regional Director to

include the name of any officer, no matter how qualified, in the list. The purpose is to enhance professionalism and to isolate the police from political domination (Andaya vs. RTC, GR No. 126661, Dec. 3, 1999)

Inter-Local Government Relations

Section 29. Provincial Relations with

Component Cities and Municipalities. - The

province, through the governor, shall ensure

that every component city and municipality

within its territorial jurisdiction acts within the

scope of its prescribed powers and functions.

Highly urbanized cities and independent

component cities shall be independent of the province.

Section 30. Review of Executive Orders. -

(a) Except as otherwise provided under the

Constitution and special statutes, the

governor shall review all executive orders

promulgated by the component city or

municipal mayor within his jurisdiction. The

city or municipal mayor shall review all

executive orders promulgated by the punong

barangay within his jurisdiction. Copies of

such orders shall be forwarded to the

governor or the city or municipal mayor, as

the case may be, within three (3) days from

their issuance. In all instances of review, the

local chief executive concerned shall ensure

that such executive orders are within the

powers granted by law and in conformity with

provincial, city, or municipal ordinances.

(b) If the governor or the city or municipal

mayor fails to act on said executive orders

within thirty (30) days after their submission,

the same shall be deemed consistent with law

and therefore valid.

Section 31. Submission of Municipal

Questions to the Provincial Legal Officer or

Prosecutor. - In the absence of a municipal

legal officer, the municipal government may

secure the opinion of the provincial legal

officer, and in the absence of the latter, that

of the provincial prosecutor on any legal question affecting the municipality.


Section 32. City and Municipal Supervision

over Their Respective Barangays. - The city or

municipality, through the city or municipal

mayor concerned, shall exercise general

supervision over component barangays to

ensure that said barangays act within the


Section 33. Cooperative Undertakings

Among Local Government Units. - Local

government units may, through appropriate

ordinances, group themselves, consolidate, or

coordinate their efforts, services, and

resources for purposes commonly beneficial

to them. In support of such undertakings, the

local government units involved may, upon

approval by the sanggunian concerned after a

public hearing conducted for the purpose,

contribute funds, real estate, equipment, and

other kinds of property and appoint or assign

personnel under such terms and conditions as

may be agreed upon by the participating local units through Memoranda of Agreement.

Relations With People's and Non-Governmental Organizations

Section 34. Role of People's and Non-

governmental Organizations. - Local

government units shall promote the

establishment and operation of people's and

non-governmental organizations to become

active partners in the pursuit of local autonomy.

Section 35. Linkages with People's and Non-

governmental Organizations. - Local

government units may enter into joint

ventures and such other cooperative

arrangements with people's and non-

governmental organizations to engage in the

delivery of certain basic services, capability-

building and livelihood projects, and to

develop local enterprises designed to improve

productivity and income, diversity agriculture,

spur rural industrialization, promote

ecological balance, and enhance the economic and social well-being of the people.

Section 36. Assistance to People's and Non-

governmental Organizations. - A local

government unit may, through its local chief

executive and with the concurrence of the

sanggunian concerned, provide assistance,

financial or otherwise, to such people's and

non-governmental organizations for

economic, socially-oriented, environmental,

or cultural projects to be implemented within its territorial jurisdiction.

Settlement of Boundary Disputes

…………………………………………

Section 118. Jurisdictional Responsibility for

Settlement of Boundary Dispute. - Boundary

disputes between and among local

government units shall, as much as possible, be settled amicably. To this end:

(a) Boundary disputes involving two (2) or

more barangays in the same city or

municipality shall be referred for settlement

to the sangguniang panlungsod or sangguniang bayan concerned.

(b) Boundary disputes involving two (2) or

more municipalities within the same

province shall be referred for settlement to

the sangguniang panlalawigan concerned.

Note: The power of the SP to settle boundary disputes is limited to implementing the law creating the municipality, and any alteration of boundaries not in accordance with the law would exceed this authority (Municipality of Jimenez vs. Borja, 265 SCRA 182).

(c) Boundary disputes involving

municipalities or component cities of

different provinces shall be jointly referred

for settlement to the sanggunians of the province concerned.

(d) Boundary disputes involving a

component city or municipality on the one

hand and a highly urbanized city on the

other, or two (2) or more highly urbanized

cities, shall be jointly referred for settlement

to the respective sanggunians of the parties.

(e) In the event the sanggunian fails to

effect an amicable settlement within sixty

(60) days from the date the dispute was

referred thereto, it shall issue a certification

to that effect. Thereafter, the dispute shall

be formally tried by the sanggunian


concerned which shall decide the issue

within sixty (60) days from the date of the

certification referred to above.

Section 119. Appeal. - Within the time and

manner prescribed by the Rules of Court, any

party may elevate the decision of the

sanggunian concerned to the proper Regional

Trial Court having jurisdiction over the area in

dispute. The Regional Trial Court shall decide

the appeal within one (1) year from the filing

thereof. Pending final resolution of the

disputed area prior to the dispute shall be

maintained and continued for all legal purposes.

Note: Inasmuch as sec. 118, LGC does not provide for the office or agency vested with the jurisdiction over the settlement of boundary disputes between a municipality and an independent component city in the same province, under BP 129, as amended by RA 7691, it should be the RTC in the province that can adjudicate the controversy. After all, the RTC has general jurisdiction to adjudicate all controversies, except only those withheld from its plenary powers (Municipality of Kanaga vs. Madrona, GR No. 141375, April 30, 2003). The boundaries of a LGU must be clear for they define the limits of the territorial jurisdiction of the LGU. It can legitimately exercise powers of government only within the limits of its territorial jurisdiction. Beyond these limits, its acts are ultra vires. Needless to state, any uncertainty in the boundaries of LGUs will sow costly conflicts in the exercise of government power which ultimately will prejudice the people’s welfare (Mariano vs. COMELEC, supra).

LOCAL OFFICIALS

………………………………………… A. Provision applicable to elective and appointive local officials:

1) Section 89,LGC. Prohibited Business

and Pecuniary Interest. -

(a) It shall be unlawful for any local

government official or employee, directly or

indirectly, to:

(1) Engage in any business transaction

with the local government unit in which he

is an official or employee or over which he

has the power of supervision, or with any

of its authorized boards, officials, agents,

or attorneys, whereby money is to be

paid, or property or any other thing of

value is to be transferred, directly or

indirectly, out of the resources of the local government unit to such person or firm;

(2) Hold such interests in any cockpit or

other games licensed by a local government unit;

(3) Purchase any real estate or other

property forfeited in favor of such local

government unit for unpaid taxes or

assessment, or by virtue of a legal

process at the instance of the said local government unit;

(4) Be a surety for any person contracting

or doing business with the local

government unit for which a surety is

required; and

(5) Possess or use any public property of

the local government unit for private purposes.

(b) All other prohibitions governing the

conduct of national public officers relating to

prohibited business and pecuniary interest so

provided for under Republic Act Numbered

Sixty-seven thirteen (R.A. No. 6713)

otherwise known as the "Code of Conduct and

Ethical Standards for Public Officials and

Employees" and other laws shall also be

applicable to local government officials and

employees.

2) Section 90, LGC. Practice of

Profession. -

(a) All governors, city and municipal mayors

are prohibited from practicing their profession

or engaging in any occupation other than the

exercise of their functions as local chief executives.

(b) Sanggunian members may practice their

professions, engage in any occupation, or

teach in schools except during session hours:

Provided, That sanggunian members who are also members of the Bar shall not:

(1) Appear as counsel before any court in

any civil case wherein a local government

unit or any office, agency, or

instrumentality of the government is the adverse party;


(2) Appear as counsel in any criminal case

wherein an officer or employee of the

national or local government is accused of

an offense committed in relation to his office.

(3) Collect any fee for their appearance in

administrative proceedings involving the

local government unit of which he is an official; and

(4) Use property and personnel of the

government except when the sanggunian

member concerned is defending the interest of the government.

(c) Doctors of medicine may practice their

profession even during official hours of work

only on occasions of emergency: Provided,

That the officials concerned do not derive monetary compensation therefrom.

Note: By appearing as counsel for dismissed employees, City Councilor Javellana violated the prohibition against engaging in private practice if such practice represents interests adverse to the government (Javellana vs. DILG, 212 SCRA 475).

Section 91. Statement of Assets and

Liabilities. - (a) Officials and employees of

local government units shall file sworn

statements of assets, liabilities and net worth,

lists of relatives within the fourth civil degree

of consanguinity or affinity in government

service, financial and business interests, and

personnel data sheets as required by law.

Section 92. Oath of Office. - (a) All elective

and appointive local officials and employees

shall, upon assumption to office, subscribe to

an oath or affirmation of office in the

prescribed form. The oath or affirmation of

office shall be filed with the office of the local

chief executive concerned. A copy of the oath

or affirmation of office of all elective and

appointive local officials and employees shall

be preserved in the individual personal

records file under the custody of the

personnel office, division, or section of the local government unit concerned.

Section 93. Partisan Political Activity. - No

local official or employee in the career civil

service shall engage directly or indirectly in

any partisan political activity or take part in

any election, initiative, referendum,

plebiscite, or recall, except to vote, nor shall

he use his official authority or influence to

cause the performance of any political activity

by any person or body. He may, however,

express his views on current issues, or

mention the names of certain candidates for

public office whom he supports. Elective local

officials may take part in partisan political and

electoral activities, but it shall be unlawful for

them to solicit contributions from their

subordinates or subject these subordinates to

any of the prohibited acts under the Omnibus

Election Code.

Section 94. Appointment of Elective and

Appointive Local Officials; Candidates Who

Lost in an Election. - (a) No elective or

appointive local official shall be eligible for

appointment or designation in any capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the

primary functions of his position, no elective

or appointive local official shall hold any other

office or employment in the government or

any subdivision, agency or instrumentality


controlled corporations or their subsidiaries.

Except for losing candidates in the barangay

elections, no candidate who lost in any

election, shall within one year after such

election, be appointed to any office in the

government or any government-owned or controlled corporation or their subsidiaries

Note: Relate this to sec. 6, Art. IX-B, which does not provide for an exception.

Section 95. Additional or Double

Compensation. - No elective or appointive

local official or employee shall receive

additional, double, or indirect compensation,

unless specifically authorized by law, nor

accept without the consent of Congress, any

present, emoluments, office, or title of any

kind from any foreign government. Pensions

or gratuities shall not be considered as additional, double, or indirect compensation.

Section 96. Permission to Leave Station. -

(a) Provincial, city, municipal, and barangay

appointive officials going on official travel


shall apply and secure written permission

from their respective local chief executives

before departure. The application shall specify

the reasons for such travel, and the

permission shall be given or withheld based

on considerations of public interest, financial

capability of the local government unit concerned and urgency of the travel.

Should the local chief executive concerned fall

to act upon such application within four (4)

working days from receipt thereof, it shall be deemed approved.

(b) Mayors of component cities and

municipalities shall secure the permission of

the governor concerned for any travel outside

the province.

(c) Local government officials traveling

abroad shall notify their respective

sanggunian: Provided, That when the period

of travel extends to more than three (3)

months, during periods of emergency or crisis

or when the travel involves the use of public

funds, permission from the Office of the

President shall be secured.

(d) Field officers of national agencies or

offices assigned in provinces, cities, and

municipalities shall not leave their official

stations without giving prior written notice to

the local chief executive concerned. Such

notice shall state the duration of travel and

the name of the officer whom he shall

designate to act for and in his behalf during

his absence.

ELECTIVE LOCAL OFFICIALS

Section 39, LGC. Qualifications. -

(a) An elective local official must be a citizen

of the Philippines; a registered voter in the

barangay, municipality, city, or province or, in

the case of a member of the sangguniang

panlalawigan, sangguniang panlungsod, or

sangguniang bayan, the district where he

intends to be elected; a resident therein for at

least one (1) year immediately preceding the

day of the election; and able to read and

write Filipino or any other local language or

dialect.

(b) Candidates for the position of governor,

vice-governor, or member of the sangguniang

panlalawigan, or mayor, vice-mayor or

member of the sangguniang panlungsod of

highly urbanized cities must be at least

twenty-one (21) years of age on election day.

(c) Candidates for the position of mayor or

vice-mayor of independent component cities,

component cities, or municipalities must be at

least twenty-one (21) years of age on election

day.

(d) Candidates for the position of member of

the sangguniang panlungsod or sangguniang

bayan must be at least eighteen (18) years of age on election day.

(e) Candidates for the position of punong

barangay or member of the sangguniang

barangay must be at least eighteen (18) years of age on election day.

(f) Candidates for the sangguniang kabataan

must be at least fifteen (15) years of age but

not more than [twenty-one (21) years] 18 years of age on election day.

NOTE: Petitioner who was over 21 (now 18) years of age on the day of the election was ordered disqualified when the SC rejected the contention of the petitioner that she was qualified because she is less than 22 years old. The phrase ―not more than 21 years of age‖ is not equivalent to ―less than 22 years old‖ (Garvida vs. Sales, 271 SCRA 767).

Section 40. Disqualifications. - The

following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an

offense involving moral turpitude or for an

offense punishable by one (1) year or more of

imprisonment, within two (2) years after serving sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for

violating the oath of allegiance to the

Republic;

(d) Those with dual citizenship;


(e) Fugitives from justice in criminal or non-political cases here or abroad;

(f) Permanent residents in a foreign country

or those who have acquired the right to reside

abroad and continue to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

NOTE: For discussions, see Election Laws.

Section 41. Manner of Election. -

(a) The governor, vice-governor, city mayor,

city vice-mayor, municipal mayor, municipal

vice-mayor, and punong barangay shall be

elected at large in their respective units by

the qualified voters therein. However, the

sangguniang kabataan chairman for each

barangay shall be elected by the registered

voters of the katipunan ng kabataan, as

provided in this Code.

(b) The regular members of the sangguniang

panlalawigan, sangguniang panlungsod, and

sangguniang bayan shall be elected by

district, as may be provided for by law.

Sangguniang barangay members shall be

elected at large. The presidents of the

leagues of sanggunian members of

component cities and municipalities shall

serve as ex officio members of the

sangguniang panlalawigan concerned. The

presidents of the "liga ng mga barangay and

the pederasyon ng mga sangguniang

kabataan" elected by their respective

chapters, as provided in this Code, shall serve

as ex officio members of the sangguniang

panlalawigan, sangguniang panlungsod, and sangguniang bayan.

(c) In addition thereto, there shall be one (1)

sectoral representative from the women, one

(1) from the workers, and one (1) from any

of the following sectors: the urban poor,

indigenous cultural communities, disabled

persons, or any other sector as may be

determined by the sanggunian concerned

within ninety (90) days prior to the holding of

the next local elections as may be provided

for by law. The COMELEC shall promulgate

the rules and regulations to effectively

provide for the election of such sectoral representatives.

Section 42. Date of Election. - Unless

otherwise provided by law, the elections for

local officials shall be held every three (3) years on the second Monday of May.

Section 43. Term of Office. -

(a) The term of office of all local elective

officials elected after the effectivity of this

Code shall be three (3) years, starting from

noon of June 30, 1992 or such date as may

be provided for by law, except that of elective

barangay officials: Provided, That all local

officials first elected during the local elections

immediately following the ratification of the

1987 Constitution shall serve until noon of June 30, 1992.

(b) No local elective official shall serve for

more than three (3) consecutive terms in the

same position. Voluntary renunciation of the

office for any length of time shall not be

considered as an interruption in the continuity

of service for the full term for which the elective official concerned was elected.

Note: The 3 term limit on local official is to be understood to refer to terms for which the official concerned was elected. Thus, a person who was elected vice-mayor in 1988, and who, because of death of the mayor, became mayor, may still be eligible to run for the position of mayor in 1998, even if elected as such in 1992 and 1995 (Borja vs. COMELEC, GR No. 133495, Sept. 1998). The SC said that the constitutional and statutory provisions have two parts. The first part provides that elective local official cannot serve for more than three consecutive terms. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form continuous service or consecutive terms. After 3 consecutive terms, an elective local official cannot seek immediate re-election for the 4

th term. The prohibited

election refers to the next regular election for the same office following the end of the 3

rd consecutive

term. Any subsequent election, like a recall election, is no longer covered by the prohibition because –

i. Subsequent election, like a recall is no longer and immediate re-election after 3 consecutive terms; and


ii. The intervening period constitutes involuntary interruption in the continuity of service (Socrates vs. COMELEC, GR No. 154512, Nov. 12, 2002).

Note: However, preventive suspension of a local

elective official is not considered as an interruption. There is no loss of title to office (Aldovino vs. COMELEC).

Running for a different elective office is tantamount to voluntary renunciation of office (Bolos vs. COMELEC).

Assumption to another office by reason of succession in office is an involuntary interruption of office (Montebon [?] vs. COMELEC) – Review Lecture

(c) The term of office of barangay officials

and members of the sangguniang kabataan

shall be for five (5) years, which shall begin

after the regular election of barangay officials

on the second Monday of May 1994 (amended by RA 8524).

Note: See RA 9164 providing for the term of office of Barangay and SK elective officials.

3 years Note:Please Verify!

Section 81. Compensation of Local Officials

and Employees. - The compensation of local

officials and personnel shall be determined by

the sanggunian concerned: Provided, That the

increase in compensation of elective local

officials shall take effect only after the terms

of office of those approving such increase

shall have expired: Provided, further, That

the increase in compensation of the

appointive officials and employees shall take

effect as provided in the ordinance

authorizing such increase: Provided, however,

That said increases shall not exceed the

limitations on budgetary allocations for

personal services provided under Title Five,

Book II of this Code: Provided, finally, That

such compensation may be based upon the

pertinent provisions of Republic Act

Numbered Sixty-seven fifty-eight (R.A. No

6758), otherwise known as the

"Compensation and Position Classification Act of 1989".

The punong barangay, the sangguniang

barangay member, the sangguniang kabataan

chairman, the barangay treasurer, and the

barangay secretary shall be entitled to such

compensation, allowances, emoluments, and

such other privileges as provided under Title One Book III of this Code.

Elective local officials shall be entitled to the

same leave privileges as those enjoyed by

appointive local officials, including the

cumulation and commutation thereof.

Rules on Succession

Section 44. Permanent Vacancies in the

Offices of the Governor, Vice-Governor,

Mayor, and Vice-Mayor. - If a permanent

vacancy occurs in the office of the governor

or mayor, the vice-governor or vice-mayor

concerned shall become the governor or

mayor. If a permanent vacancy occurs in the

offices of the governor, vice-governor, mayor,

or vice-mayor, the highest ranking

sanggunian member or, in case of his

permanent inability, the second highest

ranking sanggunian member, shall become

the governor, vice-governor, mayor or vice-

mayor, as the case may be. Subsequent

vacancies in the said office shall be filled

automatically by the other sanggunian

members according to their ranking as defined herein.

(b) If a permanent vacancy occurs in the

office of the punong barangay, the highest

ranking sanggunian barangay member or,

in case of his permanent inability, the

second highest ranking sanggunian

member, shall become the punong

barangay.

(c) A tie between or among the highest

ranking sanggunian members shall be resolved by the drawing of lots.

(d) The successors as defined herein shall

serve only the unexpired terms of their

predecessors.

For purposes of this Chapter, a permanent

vacancy arises when an elective local

official fills a higher vacant office, refuses

to assume office, fails to qualify, dies, is

removed from office, voluntarily resigns,

or is otherwise permanently incapacitated to discharge the functions of his office.


For purposes of succession as provided in the

Chapter, ranking in the sanggunian shall be

determined on the basis of the proportion of

votes obtained by each winning candidate to

the total number of registered voters in each

district in the immediately preceding local election.

NOTE: The SC rejected the contention that this provision be interpreted by factoring the number of voters who actually voted, because the law is clear and must be applied. The courts may not speculate as to the probable intent of legislature apart from the words used in the law (Victoria vs. COMELEC, 229 SCRA 269). The mode of succession in permanent vacancies may also be applied in the case of temporary vacancies in the same office (Menzon vs. Petilla, 197 SCRA 251).

Section 45. Permanent Vacancies in the

Sanggunian. -

(a) Permanent vacancies in the sanggunian

where automatic succession provided above

do not apply shall be filled by appointment in the following manner:

(1) The President, through the Executive

Secretary, in the case of the sangguniang

panlalawigan and the sangguniang

panlungsod of highly urbanized cities and independent component cities;

(2) The governor, in the case of the

sangguniang panlungsod of component cities and the sangguniang bayan;

(3) The city or municipal mayor, in the

case of sangguniang barangay, upon

recommendation of the sangguniang

barangay concerned.

(b) Except for the sangguniang barangay,

only the nominee of the political party under

which the sanggunian member concerned had

been elected and whose elevation to the

position next higher in rank created the last

vacancy in the sanggunian shall be appointed

in the manner hereinabove provided. The

appointee shall come from the same political

party as that of the sanggunian member who

caused the vacancy and shall serve the

unexpired term of the vacant office. In the

appointment herein mentioned, a nomination

and a certificate of membership of the

appointee from the highest official of the

political party concerned are conditions sine

qua non, and any appointment without such

nomination and certification shall be null and

void ab initio and shall be a ground for

administrative action against the official responsible therefore.

Note: The reason behind the right given to a political party to nominate a replacement when a permanent vacancy occurs in the sanggunian is to maintain the party representation as willed by the people in the election. In this case, with the elevation of Tamayo, who belonged to Reforma-LM, o the position of Vice-mayor, a vacancy occurred in the sanggunian that should be filled up with someone who belongs to the political party of Tamayo. To argue that the vacancy created was that formerly held by the 8

th sanggunian

me member, a Lakas-NUCD-Kampi member, would result in the increase in that party’s representation at the expense of Reforma-LM (Navarro vs. CA, GR No. 141307, March 28, 2001). Where the vacancy to be filled was that of a member of the Sangguniang Bayan [SB] who did not belong to any political party, the SC held that neither the petitioner nor the respondent was validly appointed. Not the petitioner, because although he was appointed by the Governor, he was not recommended by the SB. Neither the respondent, because although he was recommended by the SB, he was not appointed by the Governor (Fariñas vs. Barba, 256 SCRA 396).

(c) In case or permanent vacancy is caused

by a sanggunian member who does not

belong to any political party, the local chief

executive shall, upon recommendation of the

sanggunian concerned, appoint a qualified

person to fill the vacancy.

(d) In case of vacancy in the representation

of the youth and the barangay in the

sanggunian, said vacancy shall be filled

automatically by the official next in rank of the organization concerned.

NOTE: Under the LGC, the member of the SK who obtained the next highest number of votes shall succeed the Chairman if the latter refuses to assume office, fails to qualify, convicted of a crime, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has been absent without leave for more than 3 consecutive months. Ineligibility is not one of the causes enumerated by law. Thus, to avoid hiatus in the


office of the Chairman, the vacancy should be filled by the member of the SK chosen by the incumbent SK members by simple majority from among themselves (Garvida vs. Sales, 271 SCRA 767).

Section 46. Temporary Vacancy in the

Office of the Local Chief Executive. -

(a) When the governor, city or municipal

mayor, or punong barangay is temporarily

incapacitated to perform his duties for

physical or legal reasons such as, but not

limited to, leave of absence, travel abroad,

and suspension from office, the vice-

governor, city or municipal vice-mayor, or the

highest ranking sangguniang barangay

member shall automatically exercise the

powers and perform the duties and functions

of the local chief executive concerned, except

the power to appoint, suspend, or dismiss

employees which can only be exercised if the

period of temporary incapacity exceeds thirty (30) working days.

Note: A vice-governor who is concurrently an acting governor is actually a quasi-governor. For the purpose of exercising his legislative prerogatives and powers, he is deemed a non-member of the Sanggunian Panlalawigan for the time being. Thus, he cannot preside over the session of the SP (Gamboa vs. Aguirre, GR No. 134213, July 20, 1999).

(b) Said temporary incapacity shall terminate

upon submission to the appropriate

sanggunian of a written declaration by the

local chief executive concerned that he has

reported back to office. In cases where the

temporary incapacity is due to legal causes,

the local chief executive concerned shall also

submit necessary documents showing that

said legal causes no longer exist.

(c) When the incumbent local chief executive

is traveling within the country but outside his

territorial jurisdiction for a period not

exceeding three (3) consecutive days, he may

designate in writing the officer-in-charge of

the said office. Such authorization shall

specify the powers and functions that the

local official concerned shall exercise in the

absence of the local chief executive except

the power to appoint, suspend, or dismiss employees.

(d) In the event, however, that the local chief

executive concerned fails or refuses to issue

such authorization, the vice-governor, the city

or municipal vice-mayor, or the highest

ranking sangguniang barangay member, as

the case may be, shall have the right to

assume the powers, duties, and functions of

the said office on the fourth (4th) day of

absence of the said local chief executive,

subject to the limitations provided in subsection (c) hereof.

(e) Except as provided above, the local chief

executive shall in no case authorize any local

official to assume the powers, duties, and

functions of the office, other than the vice-

governor, the city or municipal vice-mayor, or

the highest ranking sangguniang barangay

member, as the case may be.

Section 82. Resignation of Elective Local

Officials. -

(a) Resignations by elective local officials

shall be deemed effective only upon acceptance by the following authorities:

(1) The President, in the case of

governors, vice-governors, and mayors

and vice-mayors of highly urbanized cities and independent component cities;

(2) The governor, in the case of municipal

mayors, municipal vice-mayors, city

mayors and city vice-mayors of component cities;

(3) The sanggunian concerned, in the case of sanggunian members; and

(4) The city or municipal mayor, in the case of barangay officials.

(b) Copies of the resignation letters of

elective local officials, together with the

action taken by the aforesaid authorities,

shall be furnished the Department of the Interior and Local Government.

(c) The resignation shall be deemed accepted

if not acted upon by the authority concerned within fifteen (15) days from receipt thereof.


(d) Irrevocable resignations by sanggunian

members shall be deemed accepted upon

presentation before an open session of the

sanggunian concerned and duly entered in its

records: Provided, however, That this

subsection does not apply to sanggunian

members who are subject to recall elections

or to cases where existing laws prescribed the manner of acting upon such resignations.

Section 83. Grievance Procedure. - In

every local government unit, the local chief

executive shall establish a procedure to

inquire into, act upon, resolve or settle

complaints and grievances presented by local

government employees.

Disciplinary Actions

Section 60. Grounds for Disciplinary

Actions. - An elective local official may be

disciplined, suspended, or removed from office on any of the following grounds:

(a) Disloyalty to the Republic of the Philippines;

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in

office, gross negligence, or dereliction of

duty;

(d) Commission of any offense involving

moral turpitude or an offense punishable by at least prision mayor;

(e) Abuse of authority;

(f) Unauthorized absence for fifteen (15)

consecutive working days, except in the

case of members of the sangguniang

panlalawigan, sangguniang panlungsod,

sangguniang bayan, and sangguniang barangay;

(g) Application for, or acquisition of, foreign

citizenship or residence or the status of an immigrant of another country; and

(h) Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from

office on the grounds enumerated above by

order of the proper court.

Note: The law on suspension or removal of elective officials must be strictly construed and applied (Pablico vs. Villapando, GR No. 147870, July 31, 2002).

Section 61. Form and Filing of Administrative

Complaints. - A verified complaint against any

erring local elective official shall be prepared as follows:

(a) A complaint against any elective official

of a province, a highly urbanized city, an

independent component city or component

city shall be filed before the Office of the

President;

Note: Under AO No. 23, the President has delegated the power to investigate complaints to the Sec. of DILG. This is valid delegation because what is delegated is only the power to investigate, not the power to discipline. Besides, the power of the Sec. of DILG to investigate based on alter ego principle (Joson vs. Torres, 290 SCRA 279). It may be noted that the Constitution places local governments under the supervision of the Executive. Likewise, the Constitution allows Congress to include in the LGC provisions for removal of local officials, which suggests that Congress may exercise removal powers. So, the LGC has done and delegated its exercise to the President. Legally, supervision is not incompatible with disciplinary authority (Ganzon vs. CA, 200 SCRA 271).

(b) A complaint against any elective official

of a municipality shall be filed before the

sangguniang panlalawigan whose decision

may be appealed to the Office of the President; and

(c) A complaint against any elective

barangay official shall be filed before the

sangguniang panlungsod or sangguniang

bayan concerned whose decision shall be final and executory.

Section 62. Notice of hearing. -

(a) Within seven (7) days after the

administrative complaint is filed, the Office of

the President or the sanggunian concerned,

as the case may be, shall require the


respondent to submit his verified answer

within fifteen (15) days from receipt thereof,

and commence the investigation of the case

within ten (10) days after receipt of such answer of the respondent.

(b) When the respondent is an elective official

of a province or highly urbanized city, such

hearing and investigation shall be conducted

in the place where he renders or holds office.

For all other local elective officials, the venue

shall be the place where the sanggunian concerned is located.

(c) However, no investigation shall be held

within ninety (90) days immediately prior to

any local election, and no preventive

suspension shall be imposed within the said

period. If preventive suspension has been

imposed prior to the 90-day period

immediately preceding local election, it shall

be deemed automatically lifted upon the start of aforesaid period.

Note: The respondent has the right to a formal investigation under AO No. 23, which includes the right to appear and defend himself in person or by counsel, the right to confront the witnesses against him and the right to compulsory process for the attendance of witnesses and the production of documents (Joson vs. Torres, supra).

Section 63. Preventive Suspension. -

(a) Preventive suspension may be imposed:

(1) By the President, if the respondent is

an elective official of a province, a highly

urbanized or an independent component city;

(2) By the governor, if the respondent is

an elective official of a component city or

municipality; or

(3) By the mayor, if the respondent is an elective official of the barangay.

(b) Preventive suspension may be imposed at

any time after the issues are joined, when the

evidence of guilt is strong, and given the

gravity of the offense, there is great

probability that the continuance in office of

the respondent could influence the witnesses

or pose a threat to the safety and integrity of

the records and other evidence: Provided,

That, any single preventive suspension of

local elective officials shall not extend beyond

sixty (60) days: Provided, further, That in the

event that several administrative cases are

filed against an elective official, he cannot be

preventively suspended for more than ninety

(90) days within a single year on the same

ground or grounds existing and known at the

time of the first suspension.

(c) Upon expiration of the preventive

suspension, the suspended elective official

shall be deemed reinstated in office without

prejudice to the continuation of the

proceedings against him, which shall be

terminated within one hundred twenty (120)

days from the time he was formally notified of

the case against him. However, if the delay in

the proceedings of the case is due to his fault,

neglect, or request, other than the appeal

duly filed, the duration of such delay shall not

be counted in computing the time of termination of the case.

(d) Any abuse of the exercise of the power of

preventive suspension shall be penalized as abuse of authority.

Note: The authority to preventively suspend is exercised concurrently with the Ombudsman, pursuant to RA 6770; the same law authorizes preventive suspension of 6 months (Hagad vs. Gozo-Dadole, GR No. 108072, Dec. 12, 1995).

Section 64. Salary of Respondent Pending

Suspension. - The respondent official

preventively suspended from office shall

receive no salary or compensation during

such suspension; but upon subsequent

exoneration and reinstatement, he shall be

paid full salary or compensation including

such emoluments accruing during such suspension.

Section 65. Rights of Respondent. - The

respondent shall be accorded full opportunity

to appear and defend himself in person or by

counsel, to confront and cross-examine the

witnesses against him, and to require the

attendance of witnesses and the production of

documentary process of subpoena or subpoena duces tecum.


Section 66. Form and Notice of Decision. -

(a) The investigation of the case shall be

terminated within ninety (90) days from the

start thereof. Within thirty (30) days after

the end of the investigation, the Office of the

President or the sanggunian concerned shall

render a decision in writing stating clearly

and distinctly the facts and the reasons for

such decision. Copies of said decision shall

immediately be furnished the respondent

and all interested parties.

(b) The penalty of suspension shall not

exceed the unexpired term of the respondent

or a period of six (6) months for every

administrative offense, nor shall said penalty

be a bar to the candidacy of the respondent

so suspended as long as he meets the qualifications required for the office.

(c) The penalty of removal from office as a

result of an administrative investigation shall

be considered a bar to the candidacy of the respondent for any elective position.

Section 67. Administrative Appeals. -

Decisions in administrative cases may, within

thirty (30) days from receipt thereof, be

appealed to the following:

(a) The sangguniang panlalawigan, in the

case of decisions of the sangguniang

panlungsod of component cities and the

sangguniang bayan; and

(b) The Office of the President, in the case

of decisions of the sangguniang

panlalawigan and the sangguniang

panlungsod of highly urbanized cities and

independent component cities.

Decisions of the Office of the President shall be final and executory.

Section 68. Execution Pending Appeal. -

An appeal shall not prevent a decision from

becoming final or executory. The respondent

shall be considered as having been placed

under preventive suspension during the

pendency of an appeal in the event he wins

such appeal. In the event the appeal results

in an exoneration, he shall be paid his salary

and such other emoluments during the

pendency of the appeal.

Note: AO No. 18, dated Feb. 12, 1987, which provides that on appeal from the decision of the SP, the President may stay execution of the appealed decision, was deemed not to have been repealed by RA 7160, inasmuch as the repealing clause of the LGC did not expressly repeal the AO, and implied repeals are frowned upon (Berces vs. Executive Secretary, 241 SCRA 539). EFFECT OF RE-ELECTION Doctrine of Condonation [Aguinaldo Doctrine] The re-election of local officials bars the continuation of the ADMINISTRATIVE case against him, inasmuch as the re-election of the official is tantamount to condonation by the people of whatever past misdeeds he may have committed (Malinao vs. Reyes, 255 SCRA 616).

Doctrine of Condonation does not apply to criminal case previously filed before the re-election of the public officer.

Where the respondent mayor having been found guilty of the administrative charges and ordered removed from office, had seasonably filed a MR with the SP, and no action on his motion was taken, then the decision of the SP never became final. After the respondent was re-elected, he may no longer be removed from office for that administrative case (Lingating vs. COMELEC, GR No. 153475, Nov. 13, 2002). The SC declined to extend the settled doctrine of condonation to cover appointive officials who were administratively charged, along with the re-elected official/appointing authority with infractions allegedly committed during preceding term (Salumbides vs. Office of the Ombudsman, GR No. 180917, April 23, 2010). RECALL Termination of official relationship for loss of confidence prior to the expiration of his term through the will of the people.

Section 69.By Whom Exercised. - The power

of recall for loss of confidence shall be

exercised by the registered voters of a local

government unit to which the local elective

official subject to such recall belongs.

Section 70.Initiation of the Recall Process. –

Note: Insert amendatory provision – RA 9244.


Note: A petition for recall signed by only one

signatory petitioner is not a valid petition

(Angobung vs. COMELEC).

Section 71.Election on Recall. - Upon the

filing of a valid petition for recall with the

appropriate local office of the COMELEC, the

Commission or its duly authorized

representative shall set the date of the

election on recall, which shall not be later

than thirty (30) days after the filing of the

resolution or petition for recall in the case of

the barangay, city, or municipal officials. and

forty-five (45) days in the case of provincial officials.

The official or officials sought to be recalled

shall automatically be considered as duly

registered candidate or candidates to the

pertinent positions and, like other candidates,

shall be entitled to be voted upon (as

amended by RA 9244)

Section 72.Effectivity of Recall. - The recall

of an elective local official shall be effective

only upon the election and proclamation of a

successor in the person of the candidate

receiving the highest number of votes cast

during the election on recall. Should the

official sought to be recalled receive the

highest number of votes, confidence in him is

thereby affirmed, and he shall continue in office.

Section 73. Prohibition from Resignation.

- The elective local official sought to be

recalled shall not be allowed to resign while the recall process is in progress.

Section 74. Limitations on Recall. -

(a) Any elective local official may be the

subject of a recall election only once during his term of office for loss of confidence.

(b) No recall shall take place within one (1)

year from the date of the official's assumption

to office or one (1) year immediately preceding a regular local election.

The word ―recall‖ is sec. 74 [b], means the actual recall election itself, not the preliminary procedures for the initiation of the recall petition. Thus, initiation may be within the one year period (Claudio vs. COMELEC).

SK election is not a regular election within the

contemplation of the LGC as would bar the holding of a recall election (Paras vs. COMELEC, GR No. 123169, Nov. 4, 1996).

The ―regular local election‖ referred to in sec. 74, means the approaching local election where the position of the official is actually contested and to be filled by the electorate (Angobung vs. COMELEC).

Section 75. Expenses Incident to Recall

Elections. - All expenses incident to recall

elections shall be borne by the COMELEC. For

this purpose, there shall be included in the

annual General Appropriations Act a

contingency fund at the disposal of the

COMELEC for the conduct of recall elections.

HUMAN RESOURCES AND DEVELOPMENT

…………………………………………………

Section 76. Organizational Structure and

Staffing Pattern. - Every local government

unit shall design and implement its own

organizational structure and staffing pattern

taking into consideration its service

requirements and financial capability, subject

to the minimum standards and guidelines prescribed by the Civil Service Commission.

Section 77. Responsibility for Human

Resources and Development. - The chief

executive of every local government unit shall

be responsible for human resources and

development in his unit and shall take all

personnel actions in accordance with the

Constitutional provisions on civil service,

pertinent laws, and rules and regulations

thereon, including such policies, guidelines

and standards as the Civil Service

Commission may establish: Provided, That

the local chief executive may employ

emergency or casual employees or laborers

paid on a daily wage or piecework basis and

hired through job orders for local projects

authorized by the sanggunian concerned,

without need of approval or attestation by the

Civil Service Commission: Provided, further,

That the period of employment of emergency

or casual laborers as provided in this Section

shall not exceed six (6) months.


The Joint Commission on Local Government

Personnel Administration organized pursuant

to Presidential Decree Numbered Eleven

Hundred thirty-six (P.D. No. 1136) is hereby

abolished and its personnel, records,

equipment and other assets transferred to the

appropriate office in the Civil Service Commission.

Section 78. Civil Service Law, Rules and

Regulations, and Other Related Issuances. -

All matters pertinent to human resources and

development in local government units shall

be governed by the civil service law and such

rules and regulations and other issuances

promulgated pursuant thereto, unless otherwise specified in this Code.

Section 79. Limitation to Appointments. - No

person shall be appointed in the career

service of the local government if he is

related within the fourth civil degree of

consanguinity or affinity to the appointing or recommending authority.

Section 80. Public Notice of Vacancy;

Personnel Selection Board. -

(a) Whenever a local executive decides to fill

a vacant career position, there shall be posted

notices of the vacancy in at least three (3)

conspicuous public places in the local

government unit concerned for a period of not less than fifteen (15) days.

(b) There shall be established in every

province, city or municipality a personnel

selection board to assist the local chief

executive in the judicious and objective

selection or personnel for employment as well

as for promotion, and in the formulation of

such policies as would contribute to employee

welfare.

(c) The personnel selection board shall be

headed by the local chief executive, and its

members shall be determined by resolution of

the sanggunian concerned. A representative

of the Civil Service Commission, if any, and

the personnel officer of the local government

unit concerned shall be ex officio members of

the board.

Note: Prohibition on the so called ―midnight appointments‖ applies only to the President or acting

President. There is no law prohibiting local elective officials from making appointments during the last days of their tenure absent any fraud or any irregularities or anomalies which breach laws and regulations governing appointments (De Rama vs. CA, GR No. 131136, Feb. 28, 2001). The Provincial Governor is without authority to designate the petitioner as Assistant Provincial Treasurer for Administration, because under sec. 471, LGC, it is the Sec. of Finance who has the power to appoint Assistant Provincial Treasurers from a list of recommendees of the Provincial Governor (Dimaandal vs. COA, 291 SCRA 322).

ADMINISTRATIVE DISCIPLINE

Section 84. Administrative Discipline. -

Investigation and adjudication of

administrative complaints against appointive

local officials and employees as well as their

suspension and removal shall be in

accordance with the civil service law and rules

and other pertinent laws. The results of such

administrative investigations shall be reported to the Civil Service Commission.

Section 85. Preventive Suspension of Appointive Local Officials and Employees. -

(a) The local chief executives may

preventively suspend for a period not

exceeding sixty (60) days and subordinate

official or employee under his authority

pending investigation if the charge against

such official or employee involves dishonesty,

oppression or grave misconduct or neglect in

the performance of duty, or if there is reason

to believe that the respondent is guilty of the

charges which would warrant his removal from the service.

(b) Upon expiration of the preventive

suspension, the suspended official or

employee shall be automatically reinstated in

office without prejudice to the continuation of

the administrative proceedings against him

until its termination. If the delay in the

proceedings of the case is due to the fault,

neglect or request of the respondent, the time

of the delay shall not be counted in

computing the period of suspension herein

provided.


Note: However, it is not the City Mayor, but the City Treasurer who exercises disciplinary authority over a City Revenue Officers. As head of the Office of the Treasurer, and revenue officer being and officer under him, the former may validly investigate said revenue officer and place him under preventive suspension (Garcia v. Pajaro, GR No. 141149, July 5, 2002).

Section 86. Administrative Investigation. - In

any local government unit, administrative

investigation may be conducted by a person

or a committee duly authorized by the local

chief executive. Said person or committee

shall conduct hearings on the cases brought

against appointive local officials and

employees and submit their findings and

recommendations to the local chief executive

concerned within fifteen (15) days from the

conclusion of the hearings. The administrative

cases herein mentioned shall be decided

within ninety (90) days from the time the respondent is formally notified of the charges.

Section 87. Disciplinary Jurisdiction. - Except

as otherwise provided by law, the local chief

executive may impose the penalty of removal

from service, demotion in rank, suspension

for not more than one (1) year without pay,

fine in an amount not exceeding six (6)

months salary, or reprimand and otherwise

discipline subordinate officials and employees

under his jurisdiction. If the penalty imposed

is suspension without pay for not more than

thirty (30) days, his decision shall be final. If

the penalty imposed is heavier than

suspension of thirty (30) days, the decision

shall be appealable to the Civil Service

Commission, which shall decide the appeal within thirty (30) days from receipt thereof.

Section 88. Execution Pending Appeal. - An

appeal shall not prevent the execution of a

decision of removal or suspension of a

respondent-appellant. In case the

respondent-appellant is exonerated, he shall

be reinstated to his position with all the rights

and privileges appurtenant thereto from the time he had been deprived thereof.

Katarungang Pambarangay

…………………………………………

Section 399. Lupong Tagapamayapa. -

(a) There is hereby created in each

barangay a lupong tagapamayapa,

hereinafter referred to as the lupon,

composed of the punong barangay, as

chairman and ten (10) to twenty (20)

members. The lupon shall be

constituted every three (3) years in

the manner provided herein.

(b) Any person actually residing or

working, in the barangay, not

otherwise expressly disqualified by

law, and possessing integrity,

impartiality, independence of mind,

sense of fairness, and reputation for

probity, may be appointed a member

of the lupon.

(c) A notice to constitute the lupon,

which shall include the names of

proposed members who have

expressed their willingness to serve,

shall be prepared by the punong

barangay within the first fifteen (15)

days from the start of his term of

office. Such notice shall be posted in

three (3) conspicuous places in the

barangay continuously for a period of not less than three (3) weeks;

(d) The punong barangay, taking into

consideration any opposition to the

proposed appointment or any

recommendations for appointment as

may have been made within the period

of posting, shall within ten (10) days

thereafter, appoint as members those

whom he determines to be suitable

therefor. Appointments shall be in

writing, signed by the punong

barangay, and attested to by the barangay secretary.

(e) The list of appointed members

shall be posted in three (3)

conspicuous places in the barangay for

the entire duration of their term of office; and


(f) In barangays where majority of the

inhabitants are members of indigenous

cultural communities, local systems of

settling disputes through their councils

of datus or elders shall be recognized

without prejudice to the applicable provisions of this Code.

Section 400. Oath and Term of Office. -

Upon appointment, each lupon member shall

take an oath of office before the punong

barangay. He shall hold office until a new

lupon is constituted on the third year

following his appointment unless sooner

terminated by resignation, transfer of

residence or place of work, or withdrawal of

appointment by the punong barangay with

the concurrence of the majority of all the

members of the lupon.

Section 401. Vacancies. - Should a vacancy

occur in the lupon for any cause, the punong

barangay shall immediately appoint a

qualified person who shall hold office only for

the unexpired portion of the term.

Section 402. Functions of the Lupon. - The lupon shall:

(a) Exercise administrative supervision

over the conciliation panels provided herein;

(b) Meet regularly once a month to

provide a forum for exchange of ideas

among its members and the public on

matters relevant to the amicable

settlement of disputes, and to enable

various conciliation panel members to

share with one another their observations

and experiences in effecting speedy resolution of disputes; and

(c) Exercise such other powers and

perform such other duties and functions as may be prescribed by law or ordinance.

Section 403. Secretary of the Lupon. - The

barangay secretary shall concurrently serve

as the secretary of the lupon. He shall record

the results of mediation proceedings before

the punong barangay and shall submit a

report thereon to the proper city or municipal

courts. He shall also receive and keep the

records of proceedings submitted to him by the various conciliation panels.

Section 404. Pangkat ng Tagapagkasundo. -

(a) There shall be constituted for each dispute

brought before the lupon a conciliation panel

to be known as the pangkat ng

tagapagkasundo, hereinafter referred to as

the pangkat, consisting of three (3) members

who shall be chosen by the parties to the dispute from the list of members of the lupon.

Should the parties fail to agree on the

pangkat membership, the same shall be

determined by lots drawn by the lupon

chairman.

(b) The three (3) members constituting the

pangkat shall elect from among themselves

the chairman and the secretary. The

secretary shall prepare the minutes of the

pangkat proceedings and submit a copy duly

attested to by the chairman to the lupon

secretary and to the proper city or municipal

court. He shall issue and cause to be served notices to the parties concerned.

The lupon secretary shall issue certified true

copies of any public record in his custody that is not by law otherwise declared confidential.

Section 405. Vacancies in the Pangkat. - Any

vacancy in the pangkat shall be chosen by the

parties to the dispute from among the other

lupon members. Should the parties fail to

agree on a common choice, the vacancy shall

be filled by lot to be drawn by the lupon chairman.

Section 406. Character of Office and Service of Lupon Members. -

(a) The lupon members, while in the

performance of their official duties or on

the occasion thereof, shall be deemed as

persons in authority, as defined in the Revised Penal Code.

(b) The lupon or pangkat members shall

serve without compensation, except as

provided for in Section 393 and without

prejudice to incentives as provided for in

this Section and in Book IV of this Code.

The Department of the Interior and Local


Government shall provide for a system of

granting economic or other incentives to

the lupon or pangkat members who

adequately demonstrate the ability to

judiciously and expeditiously resolve cases

referred to them. While in the

performance of their duties, the lupon or

pangkat members, whether in public or

private employment, shall be deemed to

be on official time, and shall not suffer

from any diminution in compensation or

allowance from said employment by reason thereof.

Section 407. Legal Advice on Matters

Involving Questions of Law. - The provincial,

city legal officer or prosecutor or the

municipal legal officer shall render legal

advice on matters involving questions of law

to the punong barangay or any lupon or

pangkat member whenever necessary in the

exercise of his functions in the administration

of the katarungang pambarangay.

Section 408. Subject Matter for Amicable

Settlement; Exception Thereto. - The lupon of

each barangay shall have authority to bring

together the parties actually residing in the

same city or municipality for amicable settlement of all disputes except:

(a) Where one party is the government, or any subdivision or instrumentality thereof;

(b) Where one party is a public officer or

employee, and the dispute relates to the

performance of his official functions;

(c) Offenses punishable by imprisonment

exceeding one (1) year or a fine

exceeding Five thousand pesos (P5,000.00);

(d) Offenses where there is no private

offended party;

(e) Where the dispute involves real

properties located in different cities or

municipalities unless the parties thereto

agree to submit their differences to

amicable settlement by an appropriate lupon;

(f) Disputes involving parties who actually

reside in barangays of different cities or

municipalities, except where such

barangay units adjoin each other and the

parties thereto agree to submit their

differences to amicable settlement by an appropriate lupon;

(g) Such other classes of disputes which

the President may determine in the

interest of Justice or upon the

recommendation of the Secretary of Justice.

The court in which non-criminal cases not

falling within the authority of the lupon

under this Code are filed may, at any time

before trial motu propio refer the case to

the lupon concerned for amicable

settlement.

Section 409. Venue. -

(a) Disputes between persons actually

residing in the same barangay shall be

brought for amicable settlement before the lupon of said barangay.

(b) Those involving actual residents of

different barangays within the same city or

municipality shall be brought in the barangay

where the respondent or any of the

respondents actually resides, at the election

of the complaint.

(c) All disputes involving real property or any

interest therein shall be brought in the

barangay where the real property or the larger portion thereof is situated.

(d) Those arising at the workplace where the

contending parties are employed or at the

institution where such parties are enrolled for

study, shall be brought in the barangay where

such workplace or institution is located.

Objections to venue shall be raised in the

mediation proceedings before the punong

barangay; otherwise, the same shall be

deemed waived. Any legal question which

may confront the punong barangay in

resolving objections to venue herein referred

to may be submitted to the Secretary of

Justice, or his duly designated representative,

whose ruling thereon shall be binding.


Section 410. Procedure for Amicable Settlement. -

(a) Who may initiate proceeding - Upon

payment of the appropriate filing fee, any

individual who has a cause of action against

another individual involving any matter within

the authority of the lupon may complain,

orally or in writing, to the lupon chairman of the barangay.

(b) Mediation by lupon chairman - Upon

receipt of the complaint, the lupon chairman

shall within the next working day summon the

respondent(s), with notice to the

complainant(s) for them and their witnesses

to appear before him for a mediation of their

conflicting interests. If he fails in his

mediation effort within fifteen (15) days from

the first meeting of the parties before him, he

shall forthwith set a date for the constitution

of the pangkat in accordance with the provisions of this Chapter.

(c) Suspension of prescriptive period of

offenses - While the dispute is under

mediation, conciliation, or arbitration, the

prescriptive periods for offenses and cause of

action under existing laws shall be interrupted

upon filing the complaint with the punong

barangay. The prescriptive periods shall

resume upon receipt by the complainant of

the complainant or the certificate of

repudiation or of the certification to file action

issued by the lupon or pangkat secretary:

Provided, however, That such interruption

shall not exceed sixty (60) days from the

filing of the complaint with the punong barangay.

(d) Issuance of summons; hearing; grounds

for disqualification - The pangkat shall

convene not later than three (3) days from its

constitution, on the day and hour set by the

lupon chairman, to hear both parties and their

witnesses, simplify issues, and explore all

possibilities for amicable settlement. For this

purpose, the pangkat may issue summons for

the personal appearance of parties and

witnesses before it. In the event that a party

moves to disqualify any member of the

pangkat by reason of relationship, bias,

interest, or any other similar grounds

discovered after the constitution of the

pangkat, the matter shall be resolved by the

affirmative vote of the majority of the

pangkat whose decision shall be final. Should

disqualification be decided upon, the resulting vacancy shall be filled as herein provided for.

(e) Period to arrive at a settlement - The

pangkat shall arrive at a settlement or

resolution of the dispute within fifteen (15)

days from the day it convenes in accordance

with this section. This period shall, at the

discretion of the pangkat, be extendible for

another period which shall not exceed fifteen (15) days, except in clearly meritorious cases.

Section 411. Form of settlement. - All

amicable settlements shall be in writing, in a

language or dialect known to the parties,

signed by them, and attested to by the lupon

chairman or the pangkat chairman, as the

case may be. When the parties to the dispute

do not use the same language or dialect, the

settlement shall be written in the language known to them.

Section 412. Conciliation. -

(a) Pre-condition to Filing of Complaint in

Court. - No complaint, petition, action, or

proceeding involving any matter within the

authority of the lupon shall be filed or

instituted directly in court or any other

government office for adjudication, unless

there has been a confrontation between the

parties before the lupon chairman or the

pangkat, and that no conciliation or

settlement has been reached as certified by

the lupon secretary or pangkat secretary as

attested to by the lupon or pangkat chairman

or unless the settlement has been repudiated

by the parties thereto.

(b) Where Parties May Go Directly to Court. -

The parties may go directly to court in the following instances:

(1) Where the accused is under detention;

(2) Where a person has otherwise been

deprived of personal liberty calling for habeas corpus proceedings;

(3) Where actions are coupled with

provisional remedies such as preliminary

injunction, attachment, delivery of


personal property and support pendente lite; and

(4) Where the action may otherwise be

barred by the statute of limitations.

(c) Conciliation among members of

indigenous cultural communities. - The

customs and traditions of indigenous cultural

communities shall be applied in settling

disputes between members of the cultural communities.

Section 413. Arbitration. -

(a) The parties may, at any stage of the

proceedings, agree in writing that they shall

abide by the arbitration award of the lupon

chairman or the pangkat. Such agreement to

arbitrate may be repudiated within five (5)

days from the date thereof for the same

grounds and in accordance with the procedure

hereinafter prescribed. The arbitration award

shall be made after the lapse of the period for

repudiation and within ten (10) days

thereafter.

(b) The arbitration award shall be in writing in

a language or dialect known to the parties.

When the parties to the dispute do not use

the same language or dialect, the award shall

be written in the language or dialect known to them.

Section 414. Proceedings Open to the

Public; Exception. - All proceedings for

settlement shall be public and informal:

Provided, however, That the lupon chairman

or the pangkat chairman, as the case may be,

may motu proprio or upon request of a party,

exclude the public from the proceedings in

the interest of privacy, decency, or public morals.

Section 415. Appearance of Parties in

Person. - In all katarungang pambarangay

proceedings, the parties must appear in

person without the assistance of counsel or

representative, except for minors and

incompetents who may be assisted by their

next-of-kin who are not lawyers.

Section 416. Effect of Amicable Settlement

and Arbitration Award. - The amicable

settlement and arbitration award shall have

the force and effect of a final judgment of a

court upon the expiration of ten (10) days

from the date thereof, unless repudiation of

the settlement has been made or a petition to

nullify the award has been filed before the

proper city or municipal court.

However, this provision shall not apply to

court cases settled by the lupon under the

last paragraph of Section 408 of this Code, in

which case the compromise or the pangkat

chairman shall be submitted to the court and

upon approval thereof, have the force and effect of a judgment of said court.

Section 417. Execution. - The amicable

settlement or arbitration award may be

enforced by execution by the lupon within six

(6) months from the date of the settlement.

After the lapse of such time, the settlement

may be enforced by action in the appropriate

city or municipal court.

Section 418. Repudiation. - Any party to the

dispute may, within ten (10) days from the

date of the settlement, repudiate the same by

filing with the lupon chairman a statement to

that effect sworn to before him, where the

consent is vitiated by fraud, violence, or

intimidation. Such repudiation shall be

sufficient basis for the issuance of the

certification for filing a complaint as hereinabove provided.

Section 419. Transmittal of Settlement and

Arbitration. - Award to the Court. - The

secretary of the lupon shall transmit the

settlement or the arbitration award to the

appropriate city or municipal court within five

(5) days from the date of the award or from

the lapse of the ten-day period repudiating

the settlement and shall furnish copies

thereof to each of the parties to the

settlement and the lupon chairman.

Section 420. Power to Administer Oaths. -

The punong barangay, as chairman of the

lupong tagapamayapa, and the members of

the pangkat are hereby authorized to

administer oaths in connection with any

matter relating to all proceedings in the

implementation of the katarungang

pambarangay.


PUBLIC INTERNATIONAL LAW

GENERAL PRINCIPLES

………………………………………… PIL; Traditional Definition: That branch of public law which regulates the relations of States and other entities which have been granted international personality. Note: The definition focuses on subjects, which are entities which possesses international personality and with rights and obligations recognized under international law, as against objects, which are persons or things in respect of which rights are held and obligations assumed by the subjects of international law. PIL; Modern Definition: The law deals with conduct of States and international organizations, their relations with each other and, in certain circumstances, their relations with persons, natural or juridical (American 3

rd Restatement).

BASIS OF INTERNATIONAL LAW [IL] 1. The Law of Nature School – There is a natural

and universal principle of right and wrong, independent of mutual intercourse or compact, which can be discovered and recognized by every individual through the use of his reason and conscience.

2. Positivist School – The binding force of international law is derived from the agreement of the States to be bound by it. In this context, international law is not a law of subordination but of coordination.

3. The Eclectic or Grotian School – In so far as it conforms to the dictates of right reason, the voluntary law may be said to blend with the natural law and be, indeed an expression of it. In case of conflict, the natural law prevails, being the more fundamental law.

4.

Public International Law

Private International Law [conflict rules]

International in nature Municipal in character

As to remedies: International modes

Remedies are within local tribunals

Parties are States and other entities with

international personality

Private persons

As to enforcement: International

sanctions, etc.

Enforcement of tribunal’s decision:

through the sheriff or police authorities

International Morality or Ethics Principles which govern relations of States from the standpoint of conscience, morality, justice and humanity. International Comity: Rules of politeness/courtesy observed by States in their relations with other States. International Administrative Law: Body of laws which regulate the relations and activities of national and international agencies with respect to their material and intellectual interests which have received international recognition. International Law as True Law: Although not enforced by a sovereign political authority, nonetheless it is still a true law. Application, enforcement and compliance: The absence of a central law-making authority and the debilitating jurisdictional defects weaken the expectation of compliance in comparison with the situation in the domestic plane. These considerations are, however, balanced by the risk of political/economic retaliation and other sanctions, such as adverse public opinion, retorsions, reprisals, the UN machinery, and the conviction that obedience will redound to the public good. Relationship with Municipal Law [ML] a. To Monists – there is no substantial distinction

between international law and municipal law.

b. To Dualists –

International Law Municipal Law

IL is not impose but adopted by states as a common rule of action

ML is issued by a political superior for observance by those

under its authority

IL is derived from such sources as international customs, conventions or general principles of law

ML consists of

enactments of law-making authority

IL applies to relations between states and

international persons

ML regulates relations of individuals among

themselves

they are resolved

through state-to-state transactions

violations of ML are redressed through local judicial or administrative

processes

there is collective responsibility

breaches of ML entail individual responsibility


Monism Dualism

There is no substantial distinction between IL and ML. It supposes that IL and ML are simply two components of a single body called ―law‖

IL and ML are independent of each other and both systems are regarded as mutually exclusive and independent

Manner of Adopting International Law

(a) DOCTRINE OF INCORPORATION By virtue of this clause in the Constitution, our courts have applied the rules of international law in a number of cases even if such rules had not been previously been subject of statutory enactments, because these GAPIL are deemed automatically part of the law of the land (Kuroda vs. Jalandoni, 42 OG 4282). (b) DOCTRINE OF TRANSFORMATION Requires the enactment by the legislative body of such international law principles as are sought to be part of municipal law. Types of Transformation:

a. Hard Transformation: it holds that only legislation can transform IL into domestic law. Courts may apply IL only where authorized by legislation.

b. Soft Transformation: holds that either a judicial or legislative act of a State can transform IL into domestic law.

RULES IN CASE OF CONFLICT BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW The Basic Rule: Attempt to reconcile apparent contradiction and thereby give effect if possible to both systems of law. Presume that municipal law is always enacted by each State with due regard for and never in defiance of the GAPIL. C. International Court/Body deciding –

International Law should prevail.

D. Domestic Court deciding – efforts should first be exerted to harmonize the seemingly conflicting laws. As a rule, municipal law prevails. Ratio: Police power cannot be bargained away through a medium of a treaty or contract (Ichong vs. Hernandez, 101 Phil. 115. Above is, however, subject to the following modifications – (Review Lecture)

e) Conflict between Constitution and jus cogens norm – jus cogens prevails. No derogation is allowed.

f) Conflict between Constitution and jus dispositivum - Constitution prevails.

g) Conflict between Constitution and Treaty based on jus dispositivum – Constitution prevails.

h) Statute and Norm of International law – i. Statue vs. jus cogens norm – jus

cogens prevails. ii. Statute vs. jus dispositivum –

apply the rule on lex posterior derogat priori and the general and special law rule.That is, the later law governs and that special law prevails over general law dealing on the same subject matter.

SOURCES OF INTERNATIONAL LAW A. Primary Sources –

1) International Treaties and Conventions;

2) International Customs – evidence of a general practice accepted as binding law through persistent usage over a long period of time. Requisites:

i. Prevailing practice by a number of states;

The main evidence of customary law is found in the actual practice of states, and a rough idea of a State’s practice can be gathered from published materials (news reports, government statements, press conferences), and the State’s laws and judicial decisions (Malanczuk, Akehurt’s Modern Introduction to International Law, 1997 p. 39). ii. Repeated over a long period of time; iii. Attended by opinio juris sive

necessitates or a sense of legal obligation.

Instant Custom (Diritto Spontaneo) A binding rule established by the spontaneous activity of a great number of States and need not be observed for a considerable period of time. The Principle of Jus Cogens – Customary international law which has the status of a peremptory [absolute, mandatory, uncompromising, certain] norm of international law. It is a norm accepted and recognized by international community of states as a rule, from which no derogation is permitted and which can be modified only by a subsequent norm having the same character. Like:

i. Slave trade; ii. piracy;


iii. Terrorism; iv. Official torture prisoners.

Jus Dispositivum – norms of ordinary customary international law which are derived from the consent of the States and therefore only binds the states which consent thereto. Obligations Erga Omnes - Literally means ―toward all‖; those obligations which seek to protect and promote basic values and common interests of all states. It is an obligation under general international law that a State owes in any given case to the international community, in view of its common values and its concern for compliance so that a breach of that obligation enables all states to take action. Persistent Objector Rule A State, which had persistently objected to the status as custom of a particular practice in the process of evolving into a custom, is not bound by that customary rule. Evidence of the objection must be clear and there is probably a presumption of acceptance [of the status of the practice as custom which is to be rebutted]. Whatever the theoretical underpinnings of the principle, it is well recognized by international tribunals, and in the practice of states (North Sea Continental Shelf Cases 1969 ICJ Rep. 3).

3) General Principles of Law. – Rules derived

mainly from natural law, observed and recognized by civilized nations.

i. Res judicata; ii. Prescription; iii. Pacta sunt servanda; iv. estoppel

YOGYAKARTA Principle: Application of international human rights law in relation to sexual or gender preference. Not yet a binding principle under international law. B. Secondary Sources –

1) Judicial Decisions – generally of international tribunals, the most authoritative being the International Court of Justice. Note: They are not really sources, but subsidiary means for finding what the law is, and whether a norm has been accepted as a rule of international law.

2) Writings of [most highly qualified] publicists.

Rules in case of Conflict Between Sources

a. Primary vs. Secondary – Primary sources prevail.

b. Both Primary – By practice, treaties take precedence over customs; and customs over general principles of law, except jus cogens.

SUBJECTS OF INTERNATIONAL LAW

………………………………………… Subjects of IL: Entity that has rights and responsibilities under international law and having the capacity o maintain its rights by bringing international claims. Includes -

1) States; 2) Colonies and dependencies; 3) Mandates and trust territories; 4) The Holy See [Vatican City]; 5) The UN; 6) Belligerent communities; 7) International administrative bodies, 8) To certain extent, individuals.

Subjects of IL Objects under IL

Entity that has rights and responsibilities under IL

Person/thing in respect of which rights are held

and obligations assumed by the

subject

Has international personality that it can

directly assert rights and can be held directly

responsible under the Law of Nations

Not directly governed

by the rules of IL

It can be a proper party in transactions involving the application of the law of nations among member

so the international community

Its rights are received and its responsibilities

imposed indirectly through the

instrumentality of an intermediate agency

1. STATE A community of persons, more or less numerous, permanently occupying a definite portion of territory, independent of external control, and possessing a government to which a great body of inhabitants render habitual obedience (CIR vs. Campos Rueda, 42 SCRA 23) ELEMENTS OF A STATE 1) People

a. Adequate number for self-defense and sufficiency;

b. Of both sexes for perpetuity.

2) Territory (Art. I) 3) Government – the agency or instrumentality

thorough which the will of the State is formulated


expressed and realized (US vs. Door, 2 Phil. 332).

4) Sovereignty – the supreme and uncontrollable power inherent in a State by which the State is governed.

Other suggested elements of a State: 1) Sufficient degree of civilization;

2) Recognition – the act by which a state

acknowledges the existence of another State, a government or a belligerent community, and indicates its willingness to deal with the entity as such under international law.

Theories on Recognition

a. Constitutive [minority view] – Recognition is the act which constitutes the entity into an international person. Under this view, recognition is compulsory and legal; it may be compelled once the elements of a state are established.

b. Declarative [majority view] – under this view, recognition merely affirms an existing fact, like the possession by the State of essential elements. It is discretionary and political.

Basic Rules on Recognition 1) It is a political act and mainly a matter of policy

on the part of each state; 2) it is discretionary on the part of the recognizing

authority; and 3) it is exercised by the political [executive]

department of the State. Thus, the legality and wisdom of recognition is not subject to judicial review.

Requirements for [de jure] Recognition of Government 1) The government is stable and effective, with no

substantial resistance to its authority; 2) the government must show willingness and

ability to discharge its international obligations; and

3) the government must enjoy popular consent or approval of the people.

Major Doctrines in Recognition:

a. Tobar/Wilson Doctrine – precludes recognition of any government established by revolutionary means until constitutional reorganization by free election of representatives. b. Stimson Doctrine – No recognition of a government established through external aggression.

c. Estrada Doctrine – since recognition has been construed as approval of a government established through a political upheaval, a state may not issue a declaration giving recognition to such government, but merely accept whatever government is in effective control without raising the issue of recognition. Dealing or not dealing with the government is not a judgment is not judgment on the legitimacy of the said government. Kinds of Recognition: (express or implied) a. De Facto – extended by the recognizing state

which believes that some of the requirements for recognition are absent. The recognition is generally provisional and limited to certain juridical relations; it does not bring about full diplomatic intercourse and does not give title to assets of the state held or situated abroad.

b. De jure – Extended to government fulfilling the

requirements for recognition. When there is no specific indication, recognition is generally considered de jure. The recognition is relatively permanent; brings about full diplomatic intercourse and observance of diplomatic immunities; and confers title to assets abroad.

Effects of Recognition 1) Right to sue in the courts of the recognizing

states; 2) Immunity from jurisdiction; 3) Entitlement to property within the recognizing

state; 4) Retroactive validation of the acts of the

recognized state/government, such as acts of state, and thus, sovereign immunity covers past, present and future acts (Oetjen vs. Central Leather Co., 246 US 297).

Note: Recognition of the State carries with it recognition of government while recognition of government does not necessarily mean recognition of the existence of the State. Recognition of the State is irrevocable while recognition of government is revocable. Recognition of Belligerency Requisites: 1) Organized civil government having control and

supervision over the armed struggle; 2) Serious and widespread struggle with the

outcome uncertain; 3) Occupation of a substantial portion of the

national territory; and 4) Willingness on the part of the rebels to observe

the rules/customs of war. Note: Absence of any of the requisites will result merely in an insurgency which is rarely recognized.


Effects of Recognition of Belligerency: 1) Responsibility for acts of rebels resulting to

nationals of the recognizing states shall be shifted to the rebel government;

2) The legitimate government recognizing the rebels shall observe the laws of was in conducting hostilities;

3) 3rd

states recognizing the belligerency shall maintain neutrality;

CREATION OF STATES a. By Revolution; b. Unification; c. Secession; d. Assertion of independence; e. Agreement; f. Attainment of civilization. EXTINCTION OF STATES a. Extinction of the population; b. En masse emigration; c. Loss (total) of territory; d. Overthrow of government resulting in anarchy . PRINICPLE OF STATE CONTINUITY The state continues as a juristic being notwithstanding changes in its circumstances, provided only that such changes do not result in the loss of any of its essential elements. Where the Emperor Louis Napoleon filed damages suit on behalf of France in an American Court, but later on he was deposed, the action was not abated and could continue upon recognition of the duly authorized representative of the new government of France (Sapphire Case). Succession of States: Takes place when one state assumes the rights and some of the obligations of another State because of certain changes in the condition of the latter. a. Universal Succession – a State is annexed to

another state, or is totally dismembered or merges with another State to form a new State. International personality of the former State is completely absorbed by the successor.

b. Partial Succession – Takes place when a portion of the territory of a State secedes or is ceded to another, or when an independent State becomes a protectorate or suzerainty, or when a dependent State acquires full sovereignty.

Consequences – 1. Political law are automatically abrogated, while

non-political laws remain in force unless changed by the new sovereign;

2. Treaties are discontinued, except those dealing with local rights and duties, such as those establishing easements and servitudes;

3. All rights of the predecessor state are inherited, but successor state can assume and reject liabilities at its discretion. (see P. vs. Perfecto, 43 Phil. 887).

Succession of Governments – The integrity of the state is not affected; the state continues as the same international person except that its lawful representative is changed. The consequences are – i. All rights of the predecessor government are

inherited by the successor; ii. And where the new government was

organized b y virtue of constitutional reform duly ratified in a plebiscite, all the obligations of the predecessor are likewise assumed;

iii. However, where the new government is established through violence, the new government may lawfully reject purely personal or political obligations of the predecessor, but not those obligations contracted by it in the ordinary course of official dealings.

CLASSES OF STATES A. Independent State – has freedom to direct and

control foreign relations without restraint from other states; may either be

i. Simple: Single central government, with power over internal and external affairs.

ii. Composite: two or more sovereign states joined together to constitute one international person, which may be – a. Real Union – two or more states merge

under a unified authority so that they form a single international person through which they act as one entity. The states retain their separate identities, but their respective international personalities are extinguished.

b. Federal Union – combination of two or more states which, upon merger, cease to be states, resulting in the creation of a new state with full international personality to represent them in their external relations as well as certain degree of power over their domestic affairs and their inhabitants.

B. Dependent State – an entity which, although

theoretically a state, does not have full freedom in the direction of its external affairs, such as – i. Protectorate – one established at the

request of the weaker state for the protection by a stronger power.


ii. Suzerainty – the result of a concession from a state to a former colony that is allowed to be independent subject to the retention by the former sovereign of certain powers over external affairs of the latter.

C. Neutralized State – one whose independence

and integrity are guaranteed by an international treaty on the condition that such state obligates itself never to take up arms against any other states, except in self-defense, or to enter in international obligation as would indirectly involved war [Switzerland, Austria).

2. COLONIES AND DEPENDENCIES COLONY - is a dependent political community consisting of a number of citizens of the same country who have migrated therefrom to inhabit another country, but remain subject to the mother State. DEPENDENCY – is a territory distinct from the country in which the supreme sovereign power resides, but belongs rightfully to it, and subject to the laws and regulations which the sovereign may prescribe.

Theoretically, both belong to the parent state and, thus, generally without personality in the international community.

However, such entities have been allowed on occasion to participate in their own right in international undertakings and granted practically the status of sovereign States. It is in this capacity that they are considered international persons.

3. MANDATES and TRUST TERRITORIES - Territories under International Control and Supervision: These are non-self-governing territories which have been placed under international supervision or control to insure political, economic, social and educational advancement. CONDOMINIUM – is a territory jointly administered by two States. 4. The Vatican City and the Holy See The Holy See has all the constituent elements of statehood.

i. People – about 1,000 individuals; ii. Territory – 108. 7 acres; iii. Government - The Pope as the Head; and iv. Independence – by virtue of Lateran Treaty

of Feb. 11, 1929, constituting the Vatican as a territory under the sovereignty of the Holy See.

Thus, It has all the rights of a state, including diplomatic intercourse, immunity from foreign jurisdiction, etc.. 5. THE UNITED NATIONS – Although not a State or a Superstate but a mere organization of States, it is regarded as an international person for certain purposes. 6. BELLIGERENT COMMUNITIES – Group of rebels under an organized civil government who have taken up arms against the legitimate government. When recognized, it is considered as a separate State for purposes of conflict and entitled to all the rights and subjected to all the obligations of a full-pledged belligerent under the laws of war. 7. INTERNATIONAL ADMINISTRATIVE BODIES Certain administrative bodies created by agreement among states, may be vested with international personality, provided that they are non-political and are autonomous and not subject to control by any State. Sample –

i. WHO; ii. ILO; iii. FAO.

8. INTERNATIONAL ORGANIZATIONS – Refer To public or intergovernmental organizations, in contrast to private or non-governmental organizations such as the Amnesty International or Red Cross. International Organizations are governed by the Principle of Specialty – that is, they are invested by the States which create them with certain powers, the limits of which is to function only for promotion of the common interest those states which created them. 9. INDIVIDUALS Although traditionally, individuals have been considered merely as objects of international law, they have been granted certain degree of international personality under a number of international agreements; like –

i. UN Charter, on equal rights of men and women, dignity and worth of a person, etc.;

ii. UDHR; iii. Treaty of Versailles, affording right to bring

suit against State before national and international tribunals;

iv. The Genocide Convention, condemning mass extermination of national, ethnic, racial or religious groups;


v. Hague Convention, where rules provides for prevention of statelessness;

vi. 1954 Covenant Relating to the Status of Stateless Persons, granting basic rights to stateless individuals;

vii. The 1950 European Convention of Human Rights and Fundamental Freedoms.

FUNDAMENTAL RIGHTS OF STATES

………………………………………… 1. Right to existence and Self-preservation.

By far the most basic and important right. Art. 51, UN Charter recognizes the right of the State to individual and collective self-defense [through regional arrangements] if an armed attack occurs against such state, until the Security Council has taken measures necessary to maintain international peace and security. However, the right may be resorted to only upon clear showing of grave and actual danger, and must be limited by necessity. It is eventually the Security Council which determines whether or not an ―armed attack‖ has taken place.

Aggression: The use of armed force by force by a state against the sovereignty, territorial integrity or political independence of another state, or in other any manner inconsistent with the UN Charter. The first use of armed force by a Sate in contravention of the Charter is prima facie evidence of an act of aggression. No consideration of whatever nature, political, economic or military, can justify aggression; a war of aggression is a crime against international peace which will give rise to international responsibility; no territorial acquisition or special advantage resulting from aggression shall be recognized as lawful. But all these are without prejudice to the right of self-determination, freedom and independence of peoples deprived of such rights, nor the right of these peoples to struggle to that end and to seek and receive support. Acts of Aggression a) Invasion or attack of a State; b) Bombardment of a State; c) Blockade of ports or coasts; d) Use of armed forces within a State in

contravention to any agreement; e) Action of State in allowing the use of its territory

for an act of aggression against a 3rd

State;

f) Sending of armed groups or mercenaries which carry an act of armed force against another State.

Requisites for the Proper Exercise of Self-Defense: 1) Armed attack; 2) Self-defensive action taken by the attacked

State must be reported immediately to the Security Council.

Such action shall not in any way affect the right of the Security Council to take action at any time as it deems necessary to maintain or restore international peace and security. The ICJ rejected the justification of collective self-defense maintained by the United States in connection with the military and paramilitary activities in and against Nicaragua. Self-defense, whether individual or collective, can only be exercised in response to an armed attack. There is no rule permitting the exercise of collective-self-defense in the absence of request by the State which is a victim of an alleged attack (Nicaragua vs. United States 1986 ICJ Rep). Preventive Self-defense The use of force in anticipation of an attack is legal if made in good faith and depends on circumstances of imminent danger. Abatement Doctrine When the conditions in the territory of a neighboring State might result in anarchy or disorder and the authorities of the State are unable to restore order and prevent its spilling over the territory of another, the latter has the duty to intervene even by armed force to restore order in the border and to end the chaos.

Maybe justified provided that no selfish aims or territorial aggrandizement or other gain is contemplated.

2. Right to Sovereignty and Independence. Sovereignty is the totality of the powers, legal competence and privileges of sate arising from customary international law, and not dependent on the consent of another state. Independence is the freedom to conduct foreign relations without outside control. The right to independence is a natural aspiration of peoples, but it is not an absolute freedom. Valid restraints may consist in the obligation to observe the rights of others; treaty stipulations, and other obligations


arising from membership in international organizations. Intervention – act by which states interfere in the domestic or foreign affairs of another state through the use of force or threat of use of force, whether physical, political or economic. GR: Under contemporary international law, as a rule, intervention is not allowed. International disputes have to be settled by peaceful means. Under art. 2, UN Charter, even the UN is precluded from intervening in matters essentially within the domestic jurisdiction of a state, unless necessary to remove and prevent threats to the peace, breaches or acts of aggression.

Nothing contained in the present Charter shall

authorize the United Nations to intervene in

matters which are essentially within the

domestic jurisdiction of any State or shall

require the members to submit such matters

to settlement under the present Charter; but

this principle shall not prejudice the

application of enforcement measures under

Chapter 7 (art. 7 [7], UN Charter). Exceptions: [Intervention Allowed] 1) As an act of self-defense; 2) Enforcement action for the maintenance of

international peace and security; 3) When such is agreed upon in a Treaty; 4) When requested from fellow States from the UN

by the parties to a dispute or a State beset by rebellion.

DRAGO DOCTRINE Contracting powers agree not to have recourse to armed force for the recovery of contractual debts claimed from the government of one country by the government of another as being due to its nationals (The Hague Convention of 1907). 3. The Right of Equality.

Under art. 2, UN Charter, states that the organization is based on the principle of sovereign equality of all its members. But what is really guaranteed is legal [or sovereign] equality. This is exemplified in the General Assembly where each member is entitled to one vote; but there may be no equality in fact, like the voting in the UN Security Council.

ACTS OF STATE DOCTRINE A State should not inquire into the legal validity of the public acts of another State done within the

territory of the latter. For this purpose, considerations such as motive are immaterial. Thus, the US court refused to inquire into the acts of Hernandez [a Venezuelan Military Commander whose government was later recognized by the US) in a damage suit brought in the US by an American who claimed that he had been unlawfully assaulted, coerced and detained by Hernandez, in Venezuela. The act of state doctrine or the principle of sovereign immunity, invoked by Ferdinand Marcos, was not appreciated inasmuch as there was no evidence adduced which showed that the acts were public [that Marcos wealth was obtained through official expropriation decrees and the like. Besides, acts of torture, execution and disappearance were clearly acts outside the President’s authority and are not covered by the act of state doctrine (Republic of the Philippines vs. Marcos, 806 Fd. 344, US Court of Appeals). DOCTRINE OF STATE IMMUNITY As consequence of independence, territorial supremacy and equality, a state enjoys immunity from the exercise of jurisdiction by another state, unless it has given consent, waived its immunity, or voluntarily submitted to the jurisdiction of the court concerned. [par in parem non habet imperium]. Restrictive application of the doctrine: This immunity, however, is recognized only with respect to sovereign or public acts of the State, and cannot be invoked with respect to private or proprietary acts (US vs. Ruiz, 136 SCRA 487). Note: Immunity extends to diplomatic personnel to the UN, its organs and specialized agencies, and to international organization (Lasco vs. UN Revolving Fund, 241 SCRA 681). Waiver of Immunity The state is deemed to have waived its immunity when -

i. it gives consent at the time the proceedings is instituted;

ii. when it takes steps regarding the merits of the case before invoking immunity;

iii. when by treaty or contract, it had previously given consent;

iv. When, by law or regulation in force at the time the complaint arose, is has indicated that it will consent to the institution of the proceedings.


4. Right to Territorial Integrity and Jurisdiction. Territory: The fixed portion on the surface of the earth on which the State settles and over which it has supreme authority Components:

1) Terrestrial; 2) Fluvial; 3) Maritime; 4) Aerial domains.

Note: For the national territory, see sec. 1, Art. I, 1987 Constitution. Inter-temporal Rule – in deciding territorial disputes, one must assess the facts in light of the international law at the ―relevant time‖, not the law at the time the issue falls to be decided (Islands of Palmas Case, 1932). Critical Date Rule – it is the date by which the rights of the parties to a territorial dispute have so crystallized that what they do afterwards does not affect the legal position (Aust, 2010). Land Territory [Terrestrial Domain Modes of Acquisition – 1) Discovery and occupation. Territory not

belonging to any State, or terra nullius, is placed under the sovereignty of the claiming State. Discovery alone, merely creates an inchoate right; it must be followed within a reasonable time by effective occupation and administration.

The territory need not be uninhabited provided that it can be established that the natives are not sufficiently civilized and can be considered possessing no rights of sovereignty but only rights of habitation.

2) Prescription. Territory may also be acquired

through continuous and uninterrupted possession over al long period of time, just like in civil law. However, there is no rule of thumb as to the length of time deeded for acquisition of territory through prescription. Grotious Doctrine of Immemorial Prescription: The uninterrupted possession of a territory going beyond memory.

3) Cession [by treaty]. Cession may be voluntary, through a treaty by sale like that sale of Alaska by Russia to the US, or through a treaty of donation, like the donation of Sabah by Borneo to the Sultan of Sulu. Cession may also be involuntary, or forced, such as the treaty entered into by the US and Spain after the Spanish-

American War ceding the Philippines, Puerto Rico, Marianas and Guam.

4) Conquest and subjugation. Having been previously conquered or occupied in the course of war of the enemy, is formally annexed to it at the end of the war. Conquest alone gives rise only to an inchoate right since it is the formal act of annexation that completes the action. Note: This mode of acquisition is no longer recognized, inasmuch as the UN Charter prohibits resort to threat or use of force against the territorial integrity or political independence of any state. Thus, the annexation of Kuwait by Iraq was declared null and void by the UN Security Council in Resolution No. 662).

5) Accretion. The increase in the land mass of the state through natural means [gradual and imperceptible deposit of soil on the coasts of the country], or artificially through human labor [reclamation projects].

Maritime [Fluvial and Maritime Domain] 1) Internal waters – Bodies of water within land

mass, such as rivers, lakes, canals, gulfs, bays, and straits. The UNCLOS defines it as all waters on the landward side of the baselines of the territorial sea.

Thalweg Doctrine: For boundary rivers, in the absence of an agreement between the riparian States, the boundary line is laid on the middle of the main navigable channel. Middle of the Bridge Doctrine: Where there is a bridge over a boundary river, the boundary line is the middle or center of the bridge. ARCHIPELAGO A group of islands, including parts of islands, interconnecting water, and other natural features which are closed interrelated in such islands, waters and other natural features which form an intrinsic geographical, economic and political entity, or which historically has been regarded as such. Archipelagic Waters The waters around, between an connecting the islands of the archipelago, regardless of their breadth and dimension, are treated as internal waters.

Vessels may be allowed innocent passage within the archipelagic waters, but this right may be suspended, after publication, in the interest of international security. The coastal state may


also designate archipelagic sea lanes for continuous, unobstructed transit of vessels.

Territorial Sea The belt of the sea located between the coast and internal waters of the coastal state on the one hand, and the high seas on the other, extending up to 12 nautical miles from the low-water mark, or in case of archipelagic states, from the baselines. Ships of all states enjoy the right of innocent passage through the territorial sea [not to through internal waters]. Innocent passage means that the passage must be continuous and expeditious, except in cases of force majeure. Submarines and other underwater craft are required to navigate on the surface and to show their flag. Contiguous Zone Extends up to 12 nautical miles from the territorial sea. Although technically, not part of the territory of the State, coastal State may exercise limited jurisdiction over the contiguous zone, to prevent infringement of customs, fiscal, immigration or sanitary laws. Exclusive Economic Zone Extends up to nautical miles from the low-water mark or the baselines, as the case may be. Technically, the area beyond the territorial sea is not pat of the territory of the State, but the coastal state may exercise sovereign rights over economic resources of the sea, seabed, subsoil, although other States shall have –

1) freedom of navigation and over-flight; 2) to lay submarine cables and pipelines; 3) other lawful uses.

Continental Shelf It comprises the seabed and the subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 miles from the baselines from which the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance. High Seas The high seas are treated as res communes or res nullius, and, thus, are not territory of any particular state. The traditional view is that the high seas are open and available, without restriction, to all states for the purpose of navigation, flight over them, laying submarine cables and pipes, fishing, research, mining, etc...

However, however, this rule is subject to regulation arising from treaty stipulations like regulation to prevent pollution and prohibiting nuclear testing. Settlement of disputes arising from UNCLOS. UNCLOS requires states to settle peacefully any dispute concerning the Convention. Failing a bilateral settlement, art. 286 provides that any dispute shall be submitted for compulsory settlement to one of the tribunals having jurisdiction. This includes the ITLOS, and the ICJ, and arbitral or special arbitral tribunals under the UNCLOS. International Tribunal for the Law of the Sea [ITLOS] Composed of 21 independent members elected by the State Parties to the UNCLOS from among persons with recognized competence in the field of the law of the sea and representing the principal legal systems of the world. Jurisdiction: Over all disputes and all applications submitted to it in accordance with the UNCLOS and over all matters specifically provided for in any other agreement which confers jurisdiction on the ITLOS. Air Territory [Aerial Domain] This refers to the air space above the land and waters of the State. The contracting parties have complete and exclusive sovereignty over the air space above its territory; but shall not include outer space, which is considered as res communes (International Convention on Civil Aviation, Dec. 7, 1944). Five Freedoms [of Air Transportation for Scheduled International Services] –

1) to fly across the territory without landing; 2) to land for non-traffic purposes; 3) to put down passengers, mail cargo of flag

territory; 4) to take passenger, mail or cargo of flag

territory; and 5) to put down passenger, mail and cargo from

these territories. IMPORTANT: Other States have no right of innocent passage over the air territory of another State but shall not include the outer space, which is considered as res communes. Outer Space The rules governing the high seas apply also to outer space, which is considered res communes.


Under the customary international law, states have the right to launch satellites in orbit over the territorial airspace of other States. Pursuant to the Outer Space Treaty of 1967, outer space is free for exploration and use by all states; it cannot be annexed by any State; and it may be used exclusively for peaceful purposes. Thus, nuclear weapons of mass destruction may not be placed in orbit around the earth. States which launch objects into space may be held liable for the harmful contamination caused by such objects, or for damage which may be caused by falling objects [like Skylab] ((1972 Convention on International Liability for Damage Caused by Space Objects). Theories on Where Outer Space Begins: a) Lowest altitude for artificial earth satellites to

orbit without being destroyed by friction – 90 kms above Earth;

b) Theoretical limits of air flights – 84 kms above the Earth;

c) Functional approach – does not depend on the boundaries set, but of the nature of the activity undertaken.

JURISDICTION The power or authority exercised by a State over land, persons, property, transactions and events. Bases of [exercise of] Jurisdiction a. Territorial Principle – The Sate may exercise

jurisdiction only within its territory. Exceptionally, it may have jurisdiction over persons and acts done outside its territory depending on the kind of jurisdiction it invokes. While there is no territorial limit on the exercise of jurisdiction over civil matters [see art. 15, NCC], a State, as a general rule, has criminal jurisdiction only over offenses committed within its territory [see art. 14, NCC in relation to art. 2, RPC], except:

i. Continuing offenses; ii. Acts prejudicial to the national security

or vital interests of the State; iii. Universal crimes.

b. Nationality Principle – The State has

jurisdiction over its nationals anywhere in the world, based on the theory that a national is entitled to the protection of the State wherever he may be, and thus, is bound to it b y duty of obedience and allegiance, unless he is prepared to renounce his nationality.

c. Protective Principle – state has jurisdiction over acts committed abroad by nationals or foreigners which are prejudicial to its national security of vital interests. (see art. 2, RPC, in Criminal Law Reviewer).

d. Principle of Universality – state has jurisdiction over offenses considered as universal crimes regardless of where committed and who committed them. Universal crimes are those which threaten the international community as a whole and are considered criminal offenses in all countries, like piracy, genocide, white slave trade, high-jacking, terrorism and war crimes.

e. Principle of Passive Personality - State exercises jurisdiction over crimes against its own nationals even if committed outside its territory. This principle may be resorted to if the others are not applicable.

Exemption from Jurisdiction: a) Doctrine of State Immunity; b) Acts of State Doctrine; c) Diplomatic Immunity; d) Immunity of the UN, its Organs, Specialized

Agencies, Other International Organizations, and its officers (see Art. 05, UN Charter);

e) Foreign merchant vessel exercising the right of innocent passage or arrival under stress;

f) Foreign armies passing through or stationed in the territory with the permission of the State;

g) Warships and other public vessels of another State operated for non-commercial purposes, because they are considered ―floating territories‖ of the flag state.

Jurisdiction Over Land Territory: Save for the exemptions mentioned, the State exercises jurisdiction over everything within it terrestrial domain. Jurisdiction Over Maritime Territory: a. Internal waters - Same rule as over the land. In

case of a foreign merchant vessel docked in a local port or bay, the coastal State exercises jurisdiction in civil matters but, but criminal jurisdiction is determined according to – i. English Rule [Territoriality Principle] – The

coastal State shall have jurisdiction over all offenses committed on board the vessel except those which do not compromise the peace of the port; or

ii. French Rule [Nationality Principle] – The flag State shall have jurisdiction over all offenses committed on board the vessel except those which compromise the peace of the port.


b. Over Archipelagic Waters - Same rule as internal waters, but subject to right of innocent passage of merchant vessels through archipelagic sea lanes.

c. Over the Territorial Sea – criminal jurisdiction over foreign merchant vessels shall be determined by the application of either the English or the French Rule. Innocent passage and arrival under stress are exceptions.

d. Over the Contiguous Zone – The coastal State may exercise the control necessary to prevent infringement of its customs, fiscal, immigration and sanitary regulations, and punish the said infringement.

e. Over the Exclusive Economic Zone – Coastal State has sovereign rights over the exclusive economic zone for purposes of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the seabed, the subsoil and the superjacent waters, as well as the production of energy from the water, currents and winds. Other States shall have the freedom of navigation and over-flight, to lay submarine cable and pipes, and other lawful uses.

f. Over the Continental Shelf – The coastal State enjoys right of exploitation of oil deposits and other resources in the continental shelf. In case the continental shelf extends to the shores of another State, or is shared with another State, the boundary shall be determined in accordance with equitable principles.

g. Over the High Seas – Jurisdiction may be exercised by the State on the high seas over the following:

i. Its vessels. The flag stage has jurisdiction over its public vessels wherever they are, and over its merchant vessels on the high seas. Note: A vessel shall have the nationality of the flag it flies, provided there is a genuine link between the State (whose flag is flown) and the vessel.

ii. Pirates. Pirates are enemies of all mankind;

they may be captured on the open seas by the vessels of any State, to whose territory they may be brought for trial and punishment;

iii. those engaged in illicit traffic of drugs and slave trade;

iv. Under the right to visit and search. Under the laws of neutrality, the public vessels or

aircraft of a belligerent state may visit and search any neutral merchant vessel on the open seas and capture it if found to be engaged in the activities favorable to the other belligerent.

v. Under the Doctrine of Hot Pursuit. Requisites: 1) an offense is committed by a foreign

merchant vessel within the territorial waters of the coastal state [or at least it has good reason to believe that an offense has been committed;

2) the pursuit must have been begun before the offending vessel has left the territorial waters or the contiguous zone;

3) the pursuit is conducted by a public vessel or aircraft or other vessels with clearly identifiable as engaged in government service;

4) the pursuit must be continuous and unabated; this right ceases as soon as the ship being pursued enters the territorial sea of its own, or a third state.

Note: This right may be exercised with

respect to violations committed in the EEZ or on the continental shelf.

5. Right of Legation.

The Right of Legation [aka Right of Diplomatic Intercourse]: This refers to the right of the State to send and receive diplomatic missions, which enables States to carry on friendly intercourse. It is not a natural or inherent right, but exists only by common consent. No liability is incurred by the State for refusing to send or receive diplomatic representatives. Agents of Diplomatic Intercourse: 1) Head of State. He is the embodiment of, and

represents the sovereignty of the State, and enjoys the right to special protection for his physical safety and the preservation of his honor and reputation. His quarters, archives, property and means of transportation are inviolate under the principle of exterritoriality. He is immune from criminal and civil jurisdiction, except when he himself is the plaintiff, and is not subject to tax or exchange or currency restrictions.

2) The Foreign Office. The actual day-to-day conduct of foreign affairs is usually entrusted to a Foreign Office, headed by a Secretary or a Minister, who, in proper cases, may make binding declaration on behalf of his government.


Note: States carry on diplomatic intercourse through permanent missions established in the capitals of other States Composition:

a. Head of Mission – i. ambassadors or nuncios accredited

to Heads of State, and other heads of mission of equivalent rank;

ii. envoys, ministers and internuncios, accredited to Heads of State; and

iii. Charges d’affaires, accredited to Ministers of Foreign Affairs.

b. diplomatic Staff, composed of those

engaged in diplomatic activities and are accorded diplomatic rank;

c. administrative and Technical Staff; d. Service Staff – those engaged in the

domestic service of the mission. The Head of Diplomatic Corps The doyen or head is usually the Papal Nuncio, if there is one, or the oldest ambassador, or in the absence of ambassadors, the oldest minister plenipotentiary. Appointment of Envoys In the Philippines, it is the President who appoints, sends and instructs the diplomatic and consular representatives, and his prerogative to determine the assignment of the country’s diplomatic representatives cannot be questioned (De Perio-Santos vs. Macaraig, GR No. 94070, April 10, 1992). AGREATION Since the receiving State has the right to refuse to receive as envoy of another State a person whom it considers unacceptable, to avoid embarrassment, States resort to an informal inquiry (enquiry) as to the acceptability of a particular envoy, to which the receiving State responds with an informal conformity (agrement) When the envoy presents himself at the receiving state, he must be armed with the following papers:

i. letter of credence [letter de creance], with the name, rank and general character of the mission, and request for favorable reception and full credence;

ii. diplomatic passport, authorizing his travel; iii. instructions, which may include document of

full powers (pleins pouvoirs) authorizing him to negotiate on extraordinary or special business; and

iv. cipher, or code or secret key, for communications with his country.

FUNCTIONS and DUTIES of Diplomatic Missions 1) Representing the sending State in the receiving

State; 2) protecting in the receiving state the interests of

the sending states and its nationals to the extent allowed under international law;

3) negotiating with the government of the receiving state;

4) ascertaining, by all lawful means, the conditions and developments in the receiving state and reporting these to the sending state;

5) promoting friendly relations between receiving and sending states;

6) developing their economic, cultural and scientific relations.

Diplomatic immunities and privileges:

1) Personal Inviolability [see RA 75];

The person of the diplomatic representative is inviolable; he shall not be liable to any form of arrest or detention. However, diplomatic envoy may be arrested temporarily in case of urgent danger, such as when he commits an act of violence which makes it necessary to put him under restraint for the purpose of preventing similar acts; but he must be released and sent home in due time.

2) inviolability of premises and archives;

The premises occupied by a diplomatic mission, as well as the private residence of the diplomatic agent, are inviolable. The agents of the receiving state may not enter without the consent of the envoy, except only in cases of extreme necessity like when the premises is on fire, or when there is an imminent danger that a crime of violence is to be perpetrated in the premises. The premises cannot be entered or searched, neither the goods, records and archives be detained by local authorities even under process of law. The service of writs, summons, orders or processes within the premises of the mission or residence of the envoy is prohibited. Even if a criminal takes refuge within the premises, the peace officers cannot break into such premises for the purpose of apprehending him. the fugitive should, however, be surrendered upon demand, unless the right of asylum exists. This rule, however, will not apply if it is the ambassador himself who requests for police assistance.


Note: Unless the right is recognized by treaty or local usage, an envoy should not permit the premises of his mission of his residence to be used as a place of asylum of fugitives from justice. However, in the interest of humanity, he may afford temporary shelter to persons in imminent peril of their lives, such as those fleeing from mob violence.

3) right of official communication; The right of an envoy to communicate with his government fully and freely is universally recognized. Because of this right, the diplomatic pouch and diplomatic couriers shall enjoy inviolability. 4) immunity from local jurisdiction; Under the 1961 Vienna Convention on Diplomatic Relations, a diplomatic agent shall enjoy immunity from criminal jurisdiction of the receiving state. thus, he may not be arrested, prosecuted and punished for any offense he may commit, unless his immunity is waived. But immunity from jurisdiction does not mean exemption from local law; it does not presuppose a right to violate the laws of the receiving state. Diplomatic privilege does not import immunity from legal liability but only exemption from local jurisdiction (Dickinson vs. Del Solar, 1 K.B. 376). Diplomatic agent also enjoys immunity from the civil and administrative jurisdiction of the receiving state, and thus, no civil action of any kind may be brought against him, even with respect to matters concerning his private life. GR: His properties are not subject to garnishment, seizure for debt, execution and the like, except:

i. any real action relating to private immovable property situated in the territory of the receiving state, unless the envoy holds it on behalf of the sending state for the purposes of the mission;

ii. an action relating to succession in which the envoy is an executor, administrator heir, legatee as private person and not on behalf of the sending state;

iii. in an action relating to any professional or commercial activity exercised b y the diplomatic agent in the receiving state outside of his official functions.

The immunity also means that the diplomatic agent cannot be compelled to testify, not even b y deposition, without the consent of his government before any judicial or administrative tribunal in the receiving state.

5) exemption from taxes and customs duties.

Under the Vienna Convention, diplomatic agents are exempt from all dues and taxes, whether personal or real, regional or municipal. Exceptions:

i. indirect taxes normally incorporated in the price of goods or services;

ii. dues and taxes on private immovable property situated in the territory of the receiving state, unless he holds it in behalf of the sending state for purposes of the mission;

iii. estate, succession taxes levied by the receiving state;

iv. dues and taxes levied on private income having its source in the receiving state and capital taxes on investments in commercial ventures in the receiving state;

v. charges levied on specific services rendered; and

vi. registration, court or record fees, mortgage dues and stamp duty, with respect to immovable property.

The Vienna Convention also provides for the following exemptions: 1) all customs duties and taxes of articles for

official use of the mission and those for personal use of the envoy or members of the family forming part of the household;

2) baggage and effects are entitled free entry, and normally exempt from inspection;

3) articles addressed to ambassadors are exempt from customs inspection.

OTHER PRIVILEGES a) Freedom of movement and travel in the territory

of the receiving state; b) exemption from all personal services and

military obligations; c) the use of flag and emblem on the diplomatic

premises and the residence; d) means of transport of the head of mission. Duration of Immunities/Privileges: The privileges are enjoyed from the moment he enters the territory of the receiving state and shall cease only the moment he leaves the country, or on expiry of a reasonable time in which to do so; although with respect to official acts, immunity shall continue indefinitely. These privileges are available even in transit, when traveling through a third State on way to or from the receiving state. Waiver of Immunities Diplomatic privileges may be waived, but as a rule, the waiver cannot be made by the individual


concerned since such immunities are not personal to him. Waiver may be made only by the government of the sending State if it concerns immunities of the head of the mission; in other cases, the waiver may be made either by the government or by the chief of the mission. Note: Waiver of this privilege, however, does not include waiver of the immunity in respect of the execution of judgment; a separate waiver for the latter is necessary. Termination of Diplomatic Mission: 1) death; 2) resignation; 3) removal; 4) abolition of office; 5) recall by the sending state; 6) dismissal by the receiving state; 7) war between the sending and the receiving

state; 8) extinction of the State.

CONSULAR RELATIONS Consuls are state agents residing abroad for various purposes but mainly in the interest of commerce and navigation. Kinds of Consuls:

a) consules missi – professional and career consuls, and nationals of the appointing state.

b) consules electi – selected by the appointing state either from its own citizens or from among nationals abroad.

Ranks:

1) Consul-General – who heads several consular districts or one exceptionally large consular district.

2) Consul – takes charge of a small district or town or port.

3) Vice-consul – assists the Consul; 4) Consular agent – usually entrusted with the

performance of certain functions by the consul.

Documents necessary before the assumption of consular functions –

i. Letters patent [letter de provision] – The letter of appointment or commission which is transmitted by the sending state to the Sec of Foreign Affairs of the country where the consul is to serve.

ii. Exequatur – The authorization given to the consul by the sovereign of the receiving state, allowing him to exercise his function within the territory.

Functions: Generally, the functions pertain to commerce and navigation, issuance of visa, and such as are designed to protect national of the appointing state. Duties of Consular Agents: 1) Protection of the interests of the sending State

and its national in the receiving State; 2) Promotion of the commercial, economic, cultural

and scientific relations of the sending and receiving State;

3) Observation of conditions and developments in the receiving State and report thereof to the sending State;

4) Issuance of passports and other travel documents to nationals of the sending State and visas or appropriate documents to persons wishing to travel to the sending State;

5) Supervision and inspection of vessels and aircraft of the sending State.

Immunities and Privileges Under the 1963 Vienna Convention on Consular Relations: 1) consuls are allowed freedom of communication

in cipher or otherwise; 2) inviolability of archives, but not of the premises

where legal processes may be served and arrests made;

3) exemption from local jurisdiction for offenses committed in the discharge of official functions [functional immunity];

4) exemption from being compelled to testify on official communications or on matters pertaining to consular functions;

5) exempt from taxes, customs duties, military or jury service;

6) may display their national flag and emblem in the consulate.

These immunities and privileges are also available to the members of the consular post, their families and their private staff. Waiver of immunities may be made by the appointing state. Termination of Consular Mission: The usual modes of terminating official relations; a) withdrawal of exequatur, b) extinction of the State, c) death, d) resignation; e) usual ways of terminating official relationship.


Note: Severance of consular relations does not necessarily terminate diplomatic relations.

International Officials

There can be no dispute that international officials are entitled to immunity only with respect to acts performed in their official capacity, unlike international organizations which enjoy absolute immunity. Clearly, the most important immunity to an international official, in the discharge of his international functions, is immunity from local jurisdiction. There is no argument in doctrine or practice with the principle that an international official is independent of the jurisdiction of the local authorities for his official acts. Those acts are not his, but are imputed to the organization, and without waiver the local courts cannot hold him liable for them. Status of the international official with respect to his private acts: Sec. 18(a) of the General Convention has been interpreted to mean that officials of the specified categories are denied immunity from local jurisdiction for acts of their private life and empowers local courts to assume jurisdiction in such cases without the necessity of waiver. Who is competent to determine whether a given act is private or official: The state of the forum (i.e., where the international organization is located) through its national courts shall make the determination in the first instance, but it may be subjected to review in the international level if questioned by the United Nations. Who has the burden to prove that questioned act is official: The international official. Under the Third Restatement of the Law, it is suggested that since an international official does not enjoy personal inviolability from arrest or detention and has immunity only with respect to official act, he is subject to judicial or administrative process and must claim his immunity in the proceedings by showing that the act in question was an official act. REMEMBER: Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is immune from criminal jurisdiction of the receiving State for all acts, whether private or official, and hence he cannot be arrested, prosecuted and punished for any offense he may commit, unless his diplomatic immunity is waived. On the other hand, officials of international organizations enjoy ―functional immunities‖, that is, only those necessary for the

exercise of the functions of the organization and the fulfillment of its purposes.

TREATIES

………………………………………… Treaty: An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more instruments and whatever its particular designation (Vienna Convention on the Law of Treaties [VCLT], 1969). it is an agreement between states, including international organizations, intended to create legal rights and obligations of the parties thereto. Other usual names or designation –

a) convention; b) pact; c) protocol; d) agreement; e) accord; f) final act; g) general act; h) exchange of notes. i) Concordat: A treaty or agreement between

ecclesiastical and civil powers to regulate the relations between the church and the State in those matters which, in some respect, are under the jurisdiction of both.

FORM OF TREATIES Should be in Writing (art. 2, VCLT, 1969). However, the fact that a treaty is unwritten shall not affect its legal force, as between the parties.

Note: The 1969, VCLT covers only treaties executed between states. It is the 1986 Vienna Convention on Treaties for International Organizations which applies to treaties executed between states and international organizations.

Where a party to an agreement is just an entity within a state, no binding international law obligation is created notwithstanding that said agreement includes foreign dignitaries as signatories and that its signing was witnessed by representatives of foreign nations. Thus, the memorandum of agreement on the ancestral domain [MOA-AD] between the government of the Republic of the Philippines and the MILF is not an internationally binding agreement nor does it constitute a unilateral declaration on the part of the Government because the commitments in the MOA-AD were no addressed to States and no complying thereto would not be detrimental to the security of international


intercourse (The Province of Cotabato vs. Government of the Republic of the Philippines Peace Panel on Ancestral Domain, GR No. 183591, Oct. 14, 2008). Requisites for Validity: a) Treaty-making capacity.

Every State possesses the capacity to conclude treaties, as an attribute of sovereignty. International organizations, also possess treating capacity, although may be limited by the purpose and the constitution of such organizations.

b) Competence of the representative/organ concluding the treaty. Generally, the Head of State exercises the treaty-making power. In our country, it is the President who exercises the power, subject to the concurrence of 2/3 of all the members of the Senate.

c) Consent freely given. The consent may be expressed by signature, exchange of instruments constituting a treaty, ratification, approval or accession, or by other means manifesting consent. Where consent is given in error or induced through fraud, the treaty is voidable.

Doctrine of Unequal Treaties: Treaties which have been imposed, through coercion or duress, by a State of unequal character, are VOID.

d) Lawful subject/object. It must be within the commerce of nations and in conformity with international law. However, the object is deemed illegal only when it contravenes or departs from an absolute or imperative rule or prohibition of international law.

e) Ratification in accordance with

Constitutional processes of the parties.

Section 21, Art. VII, 1987 Const.

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.

Note: Under MC No. 89 of the Office of the President, it is provided that, in case there is dispute as to whether or not an international agreement is purely executive agreement, the matter is referred to the Sec. of Foreign Affairs who will then seek the comments of the Senate Representative and the legal adviser of the Department, and after consultation with the Senate leadership, the Sec of

Foreign Affairs shall than, on the basis of his findings, make the appropriated recommendation to the President.

TREATY-MAKING PROCESS

1) Negotiations. The representatives of the parties are usually armed with Pleine Pouvoirs, or full powers to negotiate, enter, and adopt a treaty. Persons presumed to possess full powers to negotiate or enter into treaties:

i. Head of State; ii. Head of Government; iii. Foreign Minister; iv. The Head of Diplomatic Missions; v. Other accredited of the State.

2) Signing of the Treaty. Primarily intended as a

means of authenticating the instrument and symbolizing the good faith of the contracting parties. The principle of Alternat is observed, according to which the order of the naming of the parties and of the signatures of the plenipotentiaries is varied so that each party is named and its plenipotentiary signs first in the copy of the instrument to be kept by it.

Note: The signature DOES NOT create an obligation to ratify.

Protocol De Cloture – an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of treaties, conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending the conference. It is not the treaty itself and does not require the concurrence of the Senate (Tañada vs. Angara, GR No. 118295, May 2, 1997).

3) Ratification.

The act by which the provisions of a treaty are formally confirmed and approved by a State, and by which the State expresses its willingness to be bound by the treaty.

4) Exchange of Instruments of ratification. Note: Consent is deemed established with the exchange of the instruments of ratification, acceptance, approval or accession. if the parties so provides, upon deposit of such instrument with a named depositary, coupled with the notification of such deposit.


5) Registration and Publication by the UN Every treaty and international agreement entered into by any member of the UN should be registered as soon as possible with the Secretariat and published by it (Art. 102, UN Charter). However, failure to register would not affect the validity of the treaty, but the unregistered instrument cannot be invoked by any party thereto before any organ of the UN.

6) Entry into Force. On the date provided in the treaty or as the parties may agree. In the absence of such, the treaty enters into force and effect as soon as the consent of all the parties to be bound is established.

Binding Effects of Treaties GR: Only [original] contracting parties are bound by the provisions of the Treaty. Exceptions: When Non-Signatories may be bound by a Treaty: 1) by adhesion or accession;

The process by which a non-signatory State becomes a party to a treaty. Thus, upon invitation or permission of the contracting parties, a third party who did not participate or who did not ratify on time, may be bound by a treaty.

2) Adherence A formal act made by a 3

rd State not a signatory

to the treaty by virtue of which it assumes the obligations and privileges in the treaty.

3) by a ―most-favored nations clause‖; Pledge made by a contracting party to a treaty to grant to other party treatment not less favorable than that which had been given or may be granted to the most favored among the parties. The ―most-favored-nation‖ clause is intended to establish the principle of equality of international treatment by providing that the citizens or subjects of the contracting nations may enjoy the privileges accorded by either party to those of the most favored nation. (Commissioner of Internal Revenue vs. Johnson & son, Inc., 309 SCRA 87, June 25, 1999, 3

rd Div.).

4) when the treaty is merely a formal

expression of customary international law;

Pacta Tertiis Nec Nocent Nec Prosunt: A State is not bound to act in accordance with a treaty if it is not a party thereto, except if the treaty merely codifies customary international law.

5) or where the treaty expressly extends benefits to non-signatory states. [Stipulation pour autrui]

Reservation: A unilateral statement, made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to that State. The State making the reservation remains party to the treaty, provided that the reservation is not incompatible with the object and purpose of the treaty. Rules Pertaining to Reservations (art. 19-23, CVLT) 1. A State may make a reservation unless –

a. The reservation is prohibited by the treaty; b. The treaty only provides specified

reservations; c. When the reservation is incompatible with

the purpose and objective of the treaty. 2. A reservation does not require acceptance

unless it is otherwise provided by the treaty itself;

3. When it appears from the limited number of the negotiating States and the object and purpose of a treaty that the application of the treaty it its entirety between all the parties is an essential condition of the consent of each one to be bound by the treaty, a reservation requires acceptance by all the parties. In special cases, a competent organ or organization to which the treaty is an integral instrument must give its acceptance.

4. Unless the treaty otherwise provides: a. acceptance by another contracting State of

a reservation constitutes the reserving State a party to the treaty in relation to that other State if or when the treaty is in force for those States;

b. an objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State;

c. an act expressing a State’s consent to be bound by the treaty and containing a reservation is effective as soon as at least one other contracting State has accepted the reservation.


5. A reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of a period of 12 months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later.

6. A reservation is only personal and effective to the state-party who made the reservation. It does not alter the provisions of the treaty with respect to the other state-parties inter se.

7. A reservation is done in writing and communicated to the state-parties.

Fundamental Principles Concerning Treaties: [Observance of Treaties] a. GR: Pacta sunt servanda – requires that

treaties must be observed in good faith. If necessary, the State concerned must even modify its national legislation and Constitution to make them conform to the treaty. Treaties do indeed limit or restrict the sovereignty of the State. by their voluntary act, States may surrender some aspects of their powers in exchange for greater benefits granted by or derived from a convention or pact (Tañada vs. Angara, 272 SCRA 18).

b. Exception: Rebus sic stantibus – a Contracting State’s obligations under a treaty terminates when a vital or fundamental change of circumstances occurs, thus allowing a State to unilaterally withdraw from a treaty, because of the ―disappearance of the foundation upon which it rests.‖

The doctrine does not operate automatically. There is a necessity for a formal act of rejection, usually by the Head of State, with the statement of the reasons why compliance with the treaty is no longer required (Santos III vs. Northwest Orient Airlines, 210 SCRA 256). Requisites:

i. The change must be so substantial that the foundation of the treaty must have altogether disappeared;

ii. The change must be unforeseen or unenforceable at the time of the perfection of the treaty;

iii. The change must not have been caused by the party invoking the doctrine;

iv. the doctrine must be invoked within a reasonable time;

v. The duration of the treaty must be indefinite; and

vi. The doctrine cannot operate retroactively. Interpretation of Treaties A treaty shall be interpreted in good faith, in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its objects and purposes. Some aids in interpretation:

a. its text; b. preamble; c. annexes; d. other agreements relating to the treaty; e. subsequent agreements entered into

between the contracting parties. Modification/Amendment: To amend or modify provisions of the treaty, the consent of all the parties is required. However, if allowed by the terms of the treaty itself, tow states may modify a provision only in so far as they are concerned. Termination of Treaties: 1) expiration of the term; 2) withdrawal of a party in accordance with the

treaty; 3) extinction of one of the parties in case of a

bipartite treaty; 4) denunciation or desistance by one of the parties; 5) supervening impossibility of performance; 6) conclusion of a subsequent inconsistent treaty

[Novation]; 7) loss of the subject matter; 8) material breach or violation of the treaty; 9) application of the doctrine of rebus sic stantibus; 10) outbreak of war, except when the treaty is

particularly relates to the conduct of war; 11) severance of diplomatic relations, when the

application of the treaty is dependent on the existence of such relations;

12) emergence of a new peremptory norm of general international law which renders void any existing treaty conflicting with such norm

13) accomplishment of purpose if entered into for a specified purpose;

14) When treaty is declared void for defects in constitution or being incompatible with international law.

Invalid Treaties: 1. Those which are contrary to the provisions of a

country’s internal law [Unconstitutionality Rule].

Note: This is true only if the tribunal deciding the case is a domestic tribunal. In the international sphere, a State may not invoke its own Constitution of statute to


justify the non-compliance with provisions of the treaty.

2. When the party entering into the treaty has no

authority; 3. corruption of a State’s representative; 4. Error; 5. Fraud; 6. Coercion of State representative; 7. Coercion of a State; 8. Violation of a peremptory norm of IL [jus cogens] Distinguish treaty from an executive agreement.

Treaty Executive Agreement

an international agreement involving political issues or changes of national policy. It is of a permanent character

embodies adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature

is a more formal document

is a less formal document such as exchange of notes, agreements and protocol.

may pertain to subjects such as military alliance, extradition, etc.

covers such subjects as commercial and consular relations, most favored nation rights, patent rights, trademark and copyright protection, postal and navigational arrangements and the settlement of claims.

requires ratification by at least 2/3 of all members of the Senate.

does not require such ratification. (Commissioner of Customs vs. Eastern Sea Trading, 3 SCRA 351).

Philippines recognize the binding effect of an executive agreement even without the concurrence of the Senate In our jurisdiction, we have recognized the binding effect of executive agreements even without the concurrence of the Senate. In Commissioner of Customs vs. Eastern Sea Trading (3 SCRA 351 [1961]), it was held:

x x x the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage. From the earliest days of our history we have entered into executive agreements covering subjects as commercial and consular relations, most-favored-nation rights, patent rights, trademark and copyright protection, postal

and navigation arrangement and the settlement of claims. The validity of these has never been seriously questioned in our courts‖. Stated differently, in spite of the language of Sec. 21, Art. VII of the 1987 Constitution, the jurisprudence developed under the 1935 and the 1973 Constitutions insofar as international agreements are concerned, still prevails in this jurisdiction.

NATIONALITY AND STATELESSNESS

………………………………………… Nationality: Membership in a political community with its concomitant rights and duties. It is the tie that binds the individual to his State, from which he can claim protection and whose laws he is obliged to obey. Citizenship: Has more exclusive meaning in that it applies only to certain member of the State accorded more privileges that the rest of the people who owe it allegiance. Its significance is municipal, not international. Determination of person’s nationality [The 1930 Hague Convention on Conflict of Nationality Laws - HCCNL]: a. It is for each State to determine under its own

law who are its nationals. This law shall be recognized by other States insofar as it is consistent with international conventions, international customs, and the principles of law generally recognized with regard to nationality.

b. Any question as to whether a person possesses the nationality of a particular state shall be determined in accordance with the law of that State.

Acquisition of Nationality: 1) Birth;

i. jus sanguinis; ii. jus soli.

2) Naturalization;

i. marriage; ii. legitimation; iii. election; iv. acquisition of domicile; appointment

to government office; v. judicial, administrative or legislative

grant.

Municipal law may even prohibit the renunciation of one’s nationality under


certain circumstances, as in the application of the doctrine of indelible allegiance.

3) Repatriation; 4) Subjugation; 5) Cession.

Loss of Nationality

1) Release, such as under the Philippine Bill of 1902, giving release of Spanish citizenship to Spanish subjects;

2) Deprivation [CA 63]; 3) Renunciation; 4) substitution, such as loss of former

nationality by naturalization abroad. MULTIPLE NATIONALITIES A person may find himself possessed of more that one nationality because of the concurrent application to him of the municipal laws of two or more States claiming him as their national. This may arise by the concurrent application of the principle of jus sanguinis and jus soli; naturalization without renunciation of the original nationality; legitimation, or legislative action. Resolution of Conflicts in Multiple Nationality Cases: [1930, HCCNL] a. a person having two or more nationalities may

be regarded as its national by each of the States whose nationality he possesses, and a State may not give diplomatic protection to one of its nationals against a State whose nationality that person possesses.

b. if a person has more that one nationality, he shall, within a 3

rd State, be treated as if he had

only one; the 3rd

Sate shall recognize exclusively either the nationality of the State in which he is habitually and principally resident, or the nationality of the State with which he appears in fact to be most closely connected [Principle of Effective Nationality – Nottebohm Principle, cited in Frivaldo vs. COMELEC, GR No. 87193, June 23, 1989].

c. if a person, without any voluntary act of his own, possesses double nationality, he may renounce one of them with the permission of the State whose nationality he wishes to surrender and, subject to the laws of the State concerned, such permission shall not be refused if that person has his habitual residence abroad.

STATELESSNESS The status of having no nationality, as a consequence of being born without any nationality, or as a result of deprivation or loss of nationality.

Basic Rights of Stateless Persons [Convention Relating to the Status of Stateless Persons]: granting stateless persons within their territories treatment at least as favorable as that accorded to their nationals with respect to –

a. freedom to practice their religion and freedom as regards the religious education of their children;

b. access to courts of law; c. rationing of products in short supply; d. elementary education; e. public relief and assistance; f. labor legislation and social security

Also agreed to accord stateless persons treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens relative to – a. acquisition of movable and immovable property; b. right to association in non-political and non-profit

making associations and trade unions; c. gainful employment and practice of liberal

professions; d. housing and public education other than

elementary education; e. freedom of movement. STATE RESPONSIBILITY and TREATMENT OF

ALIENS

………………………………………… Concept of State Responsibility – The laws of State responsibility are the principles governing when and how a State is held responsible for breach of an international obligation. Intentionally Wrongful Act: An act or omission of a State that violates a rule of customary law, or ignores an obligation of a treaty it has concluded. Elements of internationally wrongful act: 1. Act that is attributable to the State under

international law; 2. Must constitute a breach of international

obligation by a State. Responsibility of States; Improper Treatment of Aliens A State is under obligation to make reparations to another State for failure to fulfill its primary obligation to afford, in accordance with international law, the proper protection due to the alien national of the latter State. The State may, therefore, be held liable for injuries and damages sustained by the alien while in the territory of the State if –


1) The act or omission constitutes international delinquency. The Treatment of the alien should amount to bad faith, an outrage, willful neglect of duty, or insufficiency of governmental action, such that every reasonable and impartial man would readily recognize its insufficiency or inadequacy.

International Standard of Justice: The standard of the ―reasonable State‖, which means reasonable according to ordinary means and notions accepted in modern civilizations.

Execution of an alien without trial is considered as falling below the international standard of justice.

2) The act or omission is directly or indirectly

imputable to the State.

Even if the law of the State conform to the international standard of justice, the act or omission causing damage may be imputable to the State if the latter does not make reasonable efforts to prevent the injury to the alien, or having done unsuccessfully, fails to repair such injury.

The act or omission may either be – a. Acts of government officials. Acts of primary

agents of the State are acts of State which will give rise to direct state responsibility. Acts of high administrative officials within the scope of their authority are also acts of State which could give rise to liability.

For acts of subordinate official, there

must be denial of justice or something which indicates complicity of the State in, or condonation of, the original wrongful act, such as omission to take disciplinary action against the wrongdoer, to give rise to liability.

Acts beyond the scope of their authority

are likened to acts of a private individual.

b. Acts of private individuals. For the State to

be responsible, it must be shown that there was actual or tacit complicity of the government in the act, before or after it, either by directly or indirectly ratifying or approving it, or in the patent or manifest negligence in taking measures to prevent injury, investigate the case, punish the guilty, or to enable the victim to pursue his civil remedies against the offender.

3) Injury to the claimant State indirectly because of damage to its national.

ENFORCEMENT OF ALIEN’S CLAIM [Review Lecture] a. Exhaustion of Local Remedies: Alien must

exhaust available local remedies for the protection or vindication of his rights, because the State must be given an opportunity to do justice in its own regular way without unwarranted interference from other States. There must be no unreasonable delay in the

assertion of the claim. There is no improper conduct of the part of

the alien. There must be no waiver. The Calvo Clause: A stipulation by which an alien waives or restricts his right to appeal to his own State in connection with any claim arising from the contract and agrees to limit himself to the remedies available under the laws of the local State.

However, this cannot be interpreted to

deprive the alien’s State of the right to protect or vindicate his interests in case they are injured in another State, because the waiver of such cannot be made by the alien but only by his own State.

Exhaustion may be dispensed with when – i. there are no remedies to exhaust; ii. courts are corrupt; or iii. where there is no adequate machinery

for the administration of justice; iv. or where the international delinquency

results from an act of state. b. Resort to Diplomatic Protection. After

exhaustion of local remedies, he must avail of the assistance of his State. Nationality of the Claim must be established.

Note: The tie of nationality must exist from the time of the injury until the time the international claim is finally settled.

Modes of Enforcement of Claims: Through negotiation, or any other methods like tender of good offices, arbitration or judicial settlement. When the responsibility of the State is established, the duty to make reparations will arise. Reparation may either be restitution, or if not possible, satisfaction or compensation, or all of the three together.


Treatment of Aliens The Rule: The general rule is that no State is under obligation to admit aliens as it flows from its right to existence and as an attribute of sovereignty. This right includes the power to regulate the entry and stay of aliens, and the State has the right to expel aliens from its territory through deportation or reconduction. EXPULSION or DEPORTATION – may be predicated on the ground that the stay of the alien constitutes a menace to the security of the State or that his entry was illegal, or that the permission to stay has expired, or that he has violated any limitation or condition prescribed for his admission and continued stay. RECONDUCTION is the forcible conveying of aliens back to their home State. Thus, destitute aliens, vagabonds, aliens without documents, alien criminal, and the like, may be arrested and reconducted to the frontier without any formalities. The home State has the obligation to receive them. EXTRADITION Is the surrender of a person by one State to another State where he is wanted for prosecution, or if already convicted, for punishment. Five postulates of extradition

1) Extradition is a major instrument for the suppression crime;

2) The requesting state will accord due process to the accused (extraditee);

3) The proceedings (in the requested state) are sui generis;

4) Compliance of the treaty shall be done in good faith; and

5) There is an underlying risk of flight (of the extraditee).

Extradition is, generally based on a Treaty, and in absence, the local State may grant an asylum to the fugitive; or if surrender is made, the same is merely a gesture of comity.

EXTRADITION DEPORTATION

Is the surrender of a person by one State to another State where

he is wanted for prosecution, or if

already convicted, for punishment.

Is the expulsion of an

alien considered undesirable by the

local State

The Surrender is generally at the

request of the State where he is wanted for

prosecution or punishment

Deportation is a

unilateral act of the local State

At the instance of the requesting State for its

interest in bringing someone to justice

At the instance of the local State made

pursuant to its own interest

Generally exists only by Treaty stipulation

An inherent right of the State as a sovereign

The alien is brought only to the requesting State

He may be brought, not necessarily to his own State, but to any State willing to accept him.

Fundamental Principles: a. Based on consent, as expressed in a treaty or

manifested as an act of goodwill. b. Principle of Specialty – A fugitive who is

extradited may be tried only for the crime specified in the request for extradition and is included in the list of offenses in the extradition treaty. Non-list type extradition treaties: Offenses punishable under the law of both States by imprisonment of one year or more are included among the extraditable offenses.

c. Political and religious offenders are generally not

subject to extradition. Attentat Clause: The murder of the head of State or any member of his family is not to be regarded as a political offense, neither is genocide.

d. The offense must have been committed within the territory or against the interest of the demanding State.

e. The Double Criminality Rule: The act for which the extradition is sought must be punishable in both the requesting and the requested State.


PRESIDENTIAL DECREE NO 1069

PRESCRIBING THE PROCEDURE FOR THE EXTRADITION OF PERSONS WHO HAVE

COMMITTED CRIMES IN A FOREIGN COUNTRY

WHEREAS, under the Constitution the Philippines adopts the generally accepted principles of international law as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity with all nations;

WHEREAS, the suppression of crime is the concern not only of the state where it is committed but also of any other state to which the criminal may have escaped, because it saps the foundation of social life and is an outrage upon humanity at large, and it is in the interest of civilized communities that crimes should not go unpunished;

WHEREAS, in recognition of this principle the Philippines recently concluded as extradition treaty with the Republic of Indonesia, and intends to conclude similar treaties with other interested countries;

WHEREAS, there is need for rules to guide the executive department and the courts in the proper implementation of the extradition treaties to which the Philippines is a signatory.

NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order and decree the following:

Section 1. Short-Title. This Decree shall be known as the "Philippine Extradition Law".

Section 2. Definition of Terms. When used in this law, the following terms shall, unless the context otherwise indicates, have meanings respectively assigned to them:

(a) "Extradition" The removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed

on him under the penal or criminal law of the requesting state or government.

(b) "Extradition Treaty or Convention" An extradition agreement between the Republic of the Philippines and one or more foreign states or governments.

(c) "Accused" The person who is, or is suspected of being, within the territorial jurisdiction of the Philippines, and whose extradition has been requested by a foreign state or government.

(d) "Requesting State or Government" The foreign state or government from which the request for extradition has emanated.

(e) "Foreign Diplomat" Any authorized diplomatic representative of the requesting state or government and recognized as such by the Secretary of Foreign Affairs.

(f) "Secretary of Foreign Affairs" The head of the Department of Foreign Affairs of the Republic of the Philippines, or in his absence, any official acting on his behalf or temporarily occupying and discharging the duties of that position.

Section 3. Aims of Extradition. Extradition may be granted only pursuant to a treaty or convention, and with a view to:

(a) A criminal investigation instituted by authorities of the requesting state or government charging the accused with an offense punishable under the laws both of the requesting state or government and the Republic of the Philippines by imprisonment or other form relevant extradition treaty or convention; or

(b) The execution of a prison sentence imposed by a court of the requesting state or government, with such duration as that stipulated in the relevant extradition treaty or convention, to be served in the jurisdiction of and as a punishment for an offense committed by the accused within the territorial jurisdiction of the requesting state or government.

Section 4. Request; By whom made; Requirements.


(1) Any foreign state or government with which the Republic of the Philippines has entered into extradition treaty or convention, only when the relevant treaty or convention, remains in force, may request for the extradition of any accused who is or suspected of being in the territorial jurisdiction of the Philippines.

(2) The request shall be made by the Foreign Diplomat of the requesting state or government, addressed to the Secretary of Foreign Affairs, and shall be accompanied by:

(a) The original or an authentic copy of either -

(1) the decision or sentence imposed upon the accused by the court of the requesting state or government; or

(2) the criminal charge and the warrant of arrest issued by the authority of the requesting state or government having jurisdiction of the matter or some other instruments having the equivalent legal force.

(b) A recital of the acts for which extradition is requested, with the fullest particulars as to the name and identity of the accused, his whereabouts in the Philippines, if known, the acts or omissions complained of, and the time and place of the commission of these acts;

(c) The text of the applicable law or a statement of the contents of said law, and the designation or description of the offense by the law, sufficient for evaluation of the request; and

(d) Such other documents or information in support of the request.

Section 5. Duty of Secretary of Foreign Affairs; Referral of Request: Filing of Petition. (1) Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements of this law and the relevant treaty or convention, he shall forward the request together with the related documents to the Secretary of Justice, who shall immediately designate and authorize an attorney in his office to take charge of these case.

(2) The attorney so designated shall file a written petition with the proper Court of First Instance of the province or city having jurisdiction of the place, with a prayer that the court take the request under consideration and shall attach to the petition all related documents. The filing of the petition and the service of the summons to the accused shall be free from the payment of docket and sheriff's fees.

(3) The Court of First Instance with which the petition shall have been filed shall have and continue to have the exclusive power to hear and decide the case, regardless of the subsequent whereabouts of the accused, or the change or changes of his place of residence.

Section 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices. (1) Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to answer the petition on the day and hour fixed in the order. We may issue a warrant for the immediate arrest of the accused which may be served any where within the Philippines if it appears to the presiding judge that the immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the answer, or should the accused after having received the summons fail to answer within the time fixed, the presiding judge shall hear the ace or set another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon the accused and the attorney having charge of the case.

Section 7. Appointment of Counsel de Oficio. If on the date set for the hearing the accused does not have a legal counsel, the presiding judge shall appoint any law practitioner residing within his territorial jurisdiction as counsel de oficio for the accused to assist him in the hearing.

Section 8. Hearing in Public; Exception; Legal Representation.

(1) The hearing shall be public unless the accused requests, with leave of court, that it be conducted in chamber.


(2) The attorney having charge of the case may upon request represent the requesting state or government throughout the proceeding. The requesting state or government may, however, retain private counsel to represent it for particular extradition case.

(3) Should the accused fail to appear on the date set for hearing, or if he is not under detention, the court shall forthwith issue a warrant for this arrest which may be served upon the accused anywhere in the Philippines.

Section 9. Nature and Conduct of Proceedings. (1) In the hearing, the provisions of the Rules of Court insofar as practicable and not inconsistent with the summary nature of the proceedings, shall apply to extradition cases, and the hearing shall be conducted in such a manner as to arrive as a fair and speedy disposition of the case.

(2) Sworn statements offered in evidence at the hearing of any extradition case shall be received and admitted as evidence if properly and legally authenticated by the principal diplomatic or consular officer of the Republic of the Philippines residing in the requesting state.

Section 10. Decision. Upon conclusion of the hearing, the court shall render a decision granting the extradition, and giving his reasons therefor upon showing of the existence of a prima facie case. Otherwise, it shall dismiss the petition.

Section 11. Service of Decision. The decision of the court shall be promptly served on the accused if he was not present at the reading thereof, and the clerk of the court shall immediately forward two copies thereof to the Secretary of Foreign Affairs through the Department of Justice.

Section 12. Appeal by Accused; Stay of Execution

(1) The accused may, within 10 days from receipt of the decision of the Court of First Instance granting extradition cases shall be final and immediately executory.

(2) The appeal shall stay the execution of the decision of the Court of First Instance.

Section 13. Application of Rules of Court. The provisions of the Rules of Court governing appeal in criminal cases in the Court of Appeals shall apply in appeal in Extradition cases, except that the parties may file typewritten or mimeograph copies of their brief within 15 days from receipt of notice to file such briefs.

Section 14. Service of Decision of Court of Appeals. The accused and the Secretary of Foreign Affairs, through the Department of Justice, shall each be promptly served with copies of the decision of the Court of Appeals.

Section 15. Concurrent Request for Extradition. In case extradition of the same person has been requested by two or more states, the Secretary of Foreign Affairs, after consultation with the Secretary of Justice, shall decide which of the several requests shall be first considered, and copies of the former's decision thereon shall promptly be forwarded to the attorney having charge of the case, if there be one, through the Department of Justice.

Section 16. Surrender of Accused. After the decision of the court in an extradition case has become final and executory, the accused shall be placed at the disposal of the authorities of the requesting state or government, at a time and place to be determined by the Secretary of Foreign Affairs, after consultation with the foreign diplomat of the requesting state or government.

Section 17. Seizure and Turn Over of Accused Properties. If extradition is granted, articles found in the possession of the accused who has been arrested may be seized upon order of the court at the instance of the requesting state or government, and such articles shall be delivered to the foreign diplomat of the requesting state or government who shall issue the corresponding receipt therefor.

Section 18. Costs and Expenses; By Whom Paid. Except when the relevant extradition treaty provides otherwise, all costs or expenses incurred in any extradition proceeding and in apprehending, securing and transmitting an accused shall be paid by the requesting state or government. The Secretary of Justice shall certify to the Secretary of


Foreign Affairs the amounts to be paid by the requesting state or government on account of expenses and costs, and the Secretary of Foreign Affairs shall cause the amounts to be collected and transmitted to the Secretary of Justice for deposit in the National Treasury of the Philippines.

Section 19. Service of Court Processes. All processes emanating from the court in connection with extradition cases shall be served or executed by the Sheriff of the province or city concerned or of any member of any law enforcement agency;

Section 20. Provisional Arrest. (a) In case of urgency, the requesting state may, pursuant to the relevant treaty or convention and while the same remains in force; request for provisional arrest of the accused pending receipt of the request for extradition made in accordance with Section 4 of this Decree.

(b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation, Manila, either through the diplomatic channels or direct by post or telegraph.

(c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt of the request immediately secure a warrant for the provisional arrest of the accused from the presiding judge of the Court of First Instance of the province or city having jurisdiction of the place, who shall issue the warrant for the provisional arrest of the accused. The Director of the National Bureau of Investigation through the Secretary of Foreign Affairs shall inform the requesting of the result of its request.

(d) If within a period of 20 days after the provisional arrest the Secretary of Foreign Affairs has not received the request for extradition and the documents mentioned in Section 4 of this Decree, the accused shall be released from custody.

(e) Release from provisional arrest shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently in accordance with the relevant treaty of convention.

Section 21. Effectivity. this Decree shall take effect immediately and its provisions shall be in force during the existence of any extradition treaty or convention with, and only in respect of, any foreign state or government.

DONE in the City of Manila , this 13th day of January in the Year of Our Lord nineteen hundred and seventy-seven.

Notes:

Procedure [in general] a. Request, accompanied by the necessary papers

relative to the identity of the wanted person and the crime alleged to have been committed or of which he has already been convicted, made through diplomatic channels to the State of refuge.

b. Upon receipt of the request, the State of refuge will conduct a judicial investigation to ascertain if the crime is covered by the extradition treaty and if there is a prima facie case against the fugitive according to its only laws. If there is, a warrant of surrender will be drawn and fugitive delivered to the State of refuge.

Procedural Outline of the Extradition

Proceedings

Request through diplomatic representative

DFA forwards requests to the DOJ

DOJ files petition for extradition with the RTC

The judge must study the petition for extradition and

its supporting documents and make, as soon as possible, a prima facie finding whether they are

sufficient, in compliance with the Extradition Treaty and Law and that the person sought is extraditable

Hearing (Counsel de oficio may be appointed if

necessary)

Appeal to CA within 10 days whose decision shall

be final and executory

Decision forwarded to DFA through the DOJ


Individual placed at the disposal of the authorities of

requesting State, costs and expenses to be shouldered by the requesting State.

Note: Abduction of the fugitive in the State of refuge is not allowed, as it constitutes a violation of the territorial integrity of the State of refuge. But if the abduction is effected with the help of the nationals of state of refuge itself, then the state of refuge cannot later demand the return of the fugitive. Rights of a person arrested and detained in another State:

1. Right to have his request complied with by

the receiving State to so inform the

consular post of his condition;

2. Right to have his communication

addressed to the consular post forwarded

by the receiving State accordingly;

3. Right to be informed by the competent

authorities of the receiving State without

delay his rights as mentioned above (Art.

36, par. 1, Vienna Convention on Consular

Relations). Note: The ICJ has determined that Art. 36, par. 1, creates individual right for the detained person in addition to the rights accorded the sending States (La Grand Case [Germany vs. United States]). The Philippines has Extradition Treaties with— 1. Indonesia (1976); 2. United States of America; 3. Thailand; 4. Australia (1988); 5. Switzerland (1989); 6. Canada (1989); 7. Micronesia (1990); 8. South Korea; 9. Hong Kong; 10. China. ASYLUM The power of the State to allow an alien who has sought refuge form prosecution to remain within the territory and under its protection.

Note: This has never been recognized as a principle of international law.

Principles on Asylum

a. Territorial Asylum. Exists only when stipulated in a treaty or justified by established usage. May depend on the liberal attitude of the receiving State, or on grounds of territorial supremacy.

b. Diplomatic Asylum: A refuge in diplomatic premises. Granted only if stipulated in a treaty, or where established usage allows it. But within the narrowest limits, or when the life or liberty of the person is threatened with imminent violence, it may be granted.

c. Political Asylum: Refuge in another State for political offense/s, danger to life or no assurance of due process.

The Philippine Rule: Generally, diplomatic asylum cannot be granted except to members of the official or personal household of diplomatic representatives. on humanitarian grounds, however, refuge may be granted to fugitives whose lives are in imminent danger from mob violence but only during the period when active danger persist (Case of Alfredo Saulo, Haya dela Torre, ICJ Reports, 1950, p. 274). REFUGEE A person who is outside the country of his nationality, of if he ahs no nationality, the country of his former habitual residence, because he has or had well-founded fear of prosecution by reason of his race, religion, nationality, political opinion, and is unable or, because of fear, is unwilling to avail of the protection of the government of the country of his nationality, or if he has no nationality, to return to the country of his former habitual residence.

A refugee is treated as a stateless individual, which is either de jure or de facto.

Principle of Non-Refoulement: No contracting State shall expel or return a refugee in any manner whatsoever, to the frontiers of territories where his life or freedom is threatened. The State is required to grant temporary asylum to refugees (The Refugee Convention of 1951). This principle is now elevated to a generally accepted principle of international law.

SETTLEMENT OF INTERNATIONAL DISPUTES

………………………………………… International Dispute: An actual disagreement between States regarding the conduct to be taken by one of them for the protection or vindication of the interests of the other. Classes of Disputes:

a. Legal – if it involves justiciable rights based on law and fact.


b. Political – if it cannot be decided by an international arbitral or judicial tribunal under the rules of international law.

Note: The parties to any dispute shall first

seek a solution through pacific or amicable

methods (Art. 33, UN Charter). A. Pacific or amicable modes –

1. Negotiation. The process by which States settle their differences through an exchange of views between diplomatic agencies.

2. Enquiry. Ascertainment of the pertinent facts and issues in a dispute. However, the findings of the party makng the enquiry are not conclusive upon the disputing States but they nevertheless may exert a strong moral influence in the settlement of the conflict.

3. Tender of good offices. A 3rd

party, either alone or in collaboration with others, offers to help in the settlement of a dispute. When the offer is accepted, there is supposed to be an ―exercise of good offices‖.

4. Mediation. A 3rd

party offers to help with a solution, usually based on a compromise. A 3

rd party does not merely provide the

opportunity for the antagonists to negotiate but also actively participates in their discussions in order to reconcile their conflicting claims. Mediation offers a solution; good offices merely bring the parties together.

The mediator offers proposals informally and on the basis of information supplied by the parties, rather than investigate matters.

Mediation cannot be forced on the parties, but only takes place if they consent. By accepting mediation, a government acknowledges that its dispute is a legitimate matter of international concern.

The success or failure of mediation rests on the parties willingness to make necessary concessions.

5. Conciliation. A method of settlement according to which a Commission set up by the parties, either on a permanent or an ad hoc basis to deal with a dispute, proceeds to the impartial examination of the dispute and attempts to define the terms of a settlement susceptible of being accepted by the parties, with a view to its settlement.

Active participation of a 3rd

party, whose services are solicited by the disputants, in

the effort to settle the conflict; but the recommendations are not binding.

6. Arbitration. The solution of a dispute by an impartial 3

rd party, usually a tribunal created by

the parties themselves under a charter known as a compromis.

The proceedings are essentially judicial and the award is, by previous agreement, binding on the parties.

7. Judicial settlement. The judicial settlement of

international disputes is now lodged in the ICJ. Optional Jurisdiction Clause The jurisdiction of the ICJ is based on the consent of the parties. However, parties to the Statute of the International Court of Justice recognize the jurisdiction of the Court over disputes concerning interpretation of a treaty, any question of international law, the existence of any fact which would constitute a breach of international obligations, and the nature or extent of the reparation to be made for such breach.

The Principle of ―ex aequo et bono‖ By what is fair and good. It is a doctrine of equity. In the present context, is used not in the

technical sense which the word possess in Anglo-American legal systems in the distinction between law and equity as separate bodies of law, but synonym for justice‖ (Malanczuk, 1997).

Used in the sense of considerations of fairness, reasonableness, and policy often necessary for the sensible application of the more settled rules of law (Brownlie, 2008).

Article 38 [2] of the ICJ Statute provides that the list of sources of IL shall not prejudice the power of the Court to secede the case ex aequo et bono, if the parties agree thereto.

8. Resort to Regional Organization.

B. Hostile Methods –

1. Severance of diplomatic relations. 2. Retorsion. Unfriendly, but lawful, coercive

acts done in retaliation for unfair treatment and acts of discrimination of another State.

3. Reprisal. Unfriendly and unlawful acts in retaliation for reciprocal unlawful acts of another State like –

i. freezing of assets of nationals of other state;

ii. embargo – the forcible detention or sequestration of the vessels and other property of the offending State;


iii. Pacific blockade – the prevention of entry to or exit from the ports of the offending State of means of communication and transportation;

iv. non-intercourse, suspension of all intercourse with the offending State particularly of commerce and trade;

v. boycott – concerted suspension of commercial relations with the offending state particularly refusing to purchase goods;

The Role of the United Nations When none of the above-mentioned methods succeeds, the UN may be asked or may decide on its own to take a hand in the settlement. This task is principally addressed to the Security Council, but may be taken over by the General Assembly under certain conditions. The Role of the Security Council The Council shall have jurisdiction in all disputes affecting international peace and security, and in all disputes which, although coming under the domestic jurisdiction clause, have been submitted to it by the parties for settlement. Steps in Settling Disputes under the Security Council: 1. Security Council shall call on the parties to settle

disputes by peaceful means; 2. If they are unable to settled their differences,

Security Council may recommend appropriate measures considering measure already adopted by the parties;

3. If the former fails, the Security Council may recommend such actual terms of settlement. This is in the nature of compulsory settlement;

4. When the terms are rejected, Security Council is empowered to -

Actions that may be taken by the Security Council: a. Preventive action: Such measures not

involving the use of armed force, such as complete or partial interruption of economic relations, and of rail, sea, air, postal, telegraphic, radio or other means of communications, and severance of diplomatic relations.

b. Enforcement action: Action by air, sea or land forces as may be necessary to maintain or restore international peace and security, including demonstrations, blockades, or other operations by air, sea or land forces of members of the UN.

WAR and NEUTRALITY

………………………………………… War: Is the contention between two [or more] States, through their armed forces, for the purpose of overpowering the other and imposing such conditions of peace as the victor pleases.

WAR REPRISALS

War exists though no force has yet been

used

Force may have already been used, but

not state of war may yet exist.

Treaties/Covenants Outlawing War: a. Covenant of the League of Nations, providing for

conditions for the right to go to war; b. Kellog-Briand Pact of 1928, Renouncing war as

― and instrument of national policy‖; c. Charter of UN, prohibiting the threat or use of

force against the territorial integrity or political independence of a State.

Commencement of War a) Declaration of war; b) Rejection of an ultimatum; or c) Commission of an act/s of force regarded by one

of the belligerents as an act of war. Effects of the Outbreak of War:

i. laws of peace are superseded by the laws of war;

ii. 3rd

states are governed by laws of neutrality; iii. diplomatic and consular relations are

terminated, and their representatives are allowed to return;

iv. treaties of political nature are automatically cancelled, except those intended to operate during the war;

v. Multipartite treaties dealing with technical or administrative matters, like postal conventions, are merely suspended;

vi. Individuals are impressed with enemy character. Tests: a. Nationality Test – Nationals of the other

belligerent wherever they may be. b. Domiciliary Test – If aliens are domiciled

in the territory of the other belligerent on the assumption that they contribute to its economic resources.

c. Activities Test – If being foreigners, they participate in the hostilities in favor of the other belligerent.

vii. Corporations and other juridical persons are

considered enemies where the controlling stockholders are nationals of the other belligerent [Wartime Test], or if incorporated


in the territory or under the laws of the other belligerent [Incorporation Test]. Thus, a corporation, controlled by German citizens, although incorporated in the Philippines, cannot recover under an insurance policy (Filipina Compania de Seguros vs. Christern Huenfeld, 89 Phil. 54). Remember: Under the Insurance Code, a public enemy cannot be insured. The reason is that the conduct of war is precisely to cripple the enemy. Thus, allowing it to recover in an insurance policy would lead to absurd situation of trying to cripple down the enemy’s war resources, on one hand, and indemnifying it for the lose on the other had.

viii. Enemy public property found in the territory of the other belligerent at the outbreak of war is subject to confiscation.

ix. Private property is subject to sequestration, and private property at sea may be confiscated, subject to certain exceptions.

Participants in War:

a. Combatants – those who engage directly in the hostilities;

b. Non-Combatants – those who do not, such women and children.

Kinds of Combatants: a. Non-privileged – like spies who, under false

pretenses try to obtain vital information from the enemy ranks and who, when caught are not considered POWs. He may be proceeded against under the municipal law of the other belligerent and may not be executed without a trial. But if he is captured after he has rejoined his army, he must be treated as a POW. Note: Scouts, or soldiers in uniform, who penetrate the zone of operations of the hostile army to obtain information, are not spies. Mercenaries: Those who participate in the hostilities but without having the privilege of combatants or POWs (Protocol I, Geneva Convention) Requisites:

i. the person must be specifically recruited to fight for a particular armed conflict, as a combatant, and not merely as an adviser;

ii. must take a direct part in the hostilities;

iii. motivated essentially by the desire for personal gain and provided material compensation substantially in excess of that promised to combatants of similar rank and function.

b. Privileged – those who, when captured, enjoy

the privileges of POWs: i. Regular armed forces; ii. Ancillary services, like doctors and

chaplains; iii. Those who accompany the armed

forces, like war correspondents; iv. Levees en masse – inhabitants of

unoccupied territory who, on approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves, provided that they carry arms openly and observe the laws and customs of war;

v. Franc tireurs or guerillas, provided that they are commanded by a person responsible for his subordinates, wear a fixed distinctive emblem recognizable at a distance, carry their arms openly, and conducted their operations according to the laws and customs of war;

vi. officers and crew of merchant vessels who forcibly resist attack.

3 Basic Principles in the Conduct of Hostilities: a. Principle of Military Necessity – The

belligerent may employ any amount of force to compel the complete submission of the enemy with the least possible loss of lives, time and money.

b. Principle of Humanity – Prohibits the use of any measure that is not absolutely necessary for the purposes of the war, such as the poisoning of well, etc.

c. Principle of Chivalry – Prohibits the belligerents from the employment of perfidious or treacherous methods, such as the illegal use of the Red Cross emblems, the flag of truce, etc.

BELLIGERENT OCCUPATION It is the temporary military occupation of the enemy’s territory during the war. The occupant need not have its feet planted on every square foot of territory, provided it maintains effective control and military superiority therein.


Effects: No change in sovereignty, but the exercise of powers of sovereignty is suspended. Political laws, except the law on treason, are suspended; municipal laws remain in force (Laurel vs. Misa, 77 Phil. 856). Rights and Duties of Belligerent Occupant: 1) Re-establish or continue the orderly

administration, including the enactment of law; 2) adopt measure for the protection of the

inhabitants; 3) requisition goods and services in non-military

projects; 4) demand taxes and contributions to finance

military and local administrative needs; 5) issue legal currency; 6) use enemy property, whether public or private,

but private property is subject to indemnification or return at the end of the war.

Foraging – The taking of provisions for amen and animals by the occupation troops where lack of time makes it inconvenient to obtain supplies by usual methods. However, compensation must be paid at the end of the war. The Right of Angary: The right of a belligerent State, in cases of extreme necessity, to destroy or use neutral property on its own or on enemy territory, or in the high seas. Non-Hostile Intercourse

1) Flag of Truce – A white flag flown to indicate

surrender, a request or offer of conference or

other peaceful intent.

2) License to trade – Permission given by

competent authority to individuals to carry on

trade though there is a state of war.

3) Cartels – agreements to regulate intercourse

during the war, usually on the exchange of

POWs.

4) Safe-conduct Pass – Permission given to an

enemy subject or to an enemy vessel allowing

passage between defined points. guarantee of

traveler's safety: official protection from harm

or immunity from arrest for somebody passing

through a dangerous area such as enemy

territory in wartime

Suspension of Hostilities 1) Suspension of arms – temporary cessation of

hostilities by agreement of the local commanders for such purposes as gathering of the wounded and burial of the dead.

2) Truce – cessation of military hostilities that both sides agree to hold, usually for a fixed period.

3) Armistice – Suspension of hostilities within a certain area or in the entire region of the war,

agreed upon, usually for the purpose of arranging the terms of peace.

4) Capitulation – Surrender of military forces, places or districts, in accordance with rules of military honor.

Termination of War 1) Simple cessation of hostilities; 2) Conclusion of a negotiated treaty of peace; 3) Defeat of one of the belligerents, followed by a

dictated treaty of peace, or annexation of conquered territory.

POSTLIMINIUM The revival or reversion to the old laws and sovereignty of territory which has been under belligerent occupation once control of the belligerent occupant is lost over the territory affected (Kim Chan vs. Valdez Tan Keh, 75 Phil. 113). Uti Possidetis: The retention of property or territory in the belligerent’s actual possession at the time of the cessation of hostilities. Note: Judicial acts and proceedings during the Japanese occupation which were not political complexion remain valid even after the liberation of the Philippines (Ognir vs. Director of Prisons, 80 Phil. 401). War Crimes: They are acts for which soldiers or other individuals may be punished by the enemy on capture of the offender. War Criminal: Any person, whether a civilian or a member of the armed forces of the State, who commits an act that violates a rule of international law governing armed conflicts.

NEUTRALITY and NEUTRALIZATION

Neutrality Neutralization

Non-participation,

directly or indirectly, in a war between

contending belligerents

Is the result of a treaty wherein the conditions

of the status are agreed upon by the

neutralized state and other signatories

The first exists only during war

Exists both in times of war and in times of

peace

Governed by the Law

of Nations

Governed by the agreement entered into by and between

the parties.


Neutralized State Is one whose independence or integrity is guaranteed by other States, under the condition that such State binds itself never to participate in an armed conflict or military operation, except for individual self-defense.

Neutral State Neutralized State

Has a status of temporary neutrality in time of war between other States

Has a status of permanent neutrality

Neutrality is purely discretionary

Neutrality is guaranteed by explicit agreement of limited number of powers

Has no obligation to maintain neutrality

Has an obligation to remain neutral

Non-Belligerency A status midway between neutrality and belligerency which is NOT recognized under international law. under this case, a State did not take part in the military operations but also did not observe the duties of a neutral State. NOTE: In view of the enforcement action which UN may take, absolute neutrality cannot exist among UN members. Rights and Duties of Neutrals: 1) To abstain from taking part in the hostilities and

from giving assistance to either belligerent by – i. sending of troops; ii. granting of loans; iii. the carriage of contrabands.

Contraband: Goods which, although neutral property, may be seized by a belligerent because they are useful for war and are bound for a hostile destination. a. Absolute contraband – Such as guns,

ammunitions, which are useful war materials.

b. Conditional contraband – such as foods and clothing, which have both civilian and military utility. Note: Medicines, however, are exempt fro the law on contraband for humanitarian reasons.

Doctrine of Ultimate Consumption: Goods intended for civilian use may ultimately find their way to and be consumed by belligerent forces may be seized on the way. Doctrine of Infection: Innocent goods, when shipped with contrabands may also be seized.

Doctrine of Continuous Voyage/Transport: Goods reloaded at an intermediate port on the same vessel, or reloaded on another vessel or other forms of transportation may also be seized on the basis of the doctrine of ultimate consumption.

2) To prevent its territory and other resources from

being used in the conduct of hostilities;

3) to acquiesce to certain restrictions and limitations which the belligerent may find necessary to impose such as

i. Blockade; requisites – a. it must be duly communicated to neutral

state to be binding; b. it must be maintained by adequate

forces to be effective; c. it is established by competent authority

of the belligerent government; d. limited only to the territory of the enemy; e. impartially applied to all states.

ii. visit and search – warships and aircrafts

have the right to visit and search merchant vessels to determine their participation in the hostilities.

Note: Captured vessels engaging in hostile activities are considered as ―prize‖.

Termination of Neutrality a. Conclusion of a treaty of peace between the

belligerents; b. When the neutral state itself joins the war.

INTERNATIONAL HUMAN RIGHTS LAW

…………………………………………

The International Bill of Rights: 1. Universal Declaration of Human Rights [UHDR]; 2. International Covenant of Civil and Political

Rights [ICCPR]; 3. International Covenant of Economic, Social and

Cultural Rights [ICESCR].

The Universal Declaration of Human Rights Adopted by the UN General Assembly on Dec.

10, 1948 at Palais de Chaillot, Paris. The Preamble: It is proclaimed ― as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to


promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of the Member States themselves and among peoples of territories under their jurisdiction.‖ Art. 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Art. 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. 1. First Generation Rights [civil and political] Art. 3. Everyone has the right to life, liberty and security of person. a. Freedom from slavery or servitude; b. Freedom from torture or to cruel, inhuman or

degrading treatment or punishment; c. Right to recognition everywhere as a person

before the law; d. Right to equal protection of the law; e. Right to an effective remedy by the competent

national tribunals; f. Freedom from arbitrary arrest, detention or exile; g. Right to a fair and public hearing by and

independent and impartial tribunal; h. Right to be presumed innocent until proved

guilty; i. freedom from arbitrary interference with his

privacy, family home or correspondence; j. Freedom of movement and residence within the

borders of each State; k. Right to leave his or any country and to return to

his country; l. Right to seek and enjoy in other countries

asylum from persecution; m. Right to a nationality; n. Right to marry and to found a family; o. Right to own property alone as well as in

association with others; p. Freedom of thought, conscience and religion; q. Freedom of opinion and expression; r. Freedom of peaceful assembly and association; s. Right to take part in the government of his

country, directly or indirectly through chosen representatives;

t. Right of equal access to public service in his country.

2. Second Generation Rights [economic, social and cultural] Art. 22. Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of economic, social and cultural rights indispensable for his dignity and free development of his personality.

a. Right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment;

b. Right to rest and leisure; c. Right to a standard of living adequate for the

health and well-being of himself and of his family;

d. Right to education; e. Right to freely participate in the cultural life

of the community, to enjoy the arts and to share in scientific advancement and its benefits.

Limitations in the Exercise of Rights: Art. 29 [2]. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. Art. 29 [3]. Theses rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

International Covenant of Civil and Political Rights

Adopted and opened for signature, ratification

and accession by the U.U. Entered into force and effect: March 23, 1976. A legally binding treaty for the protection of first

generation human rights. Substantive Rights Treated in the Covenant includes, among others: a. Right to self-determination; b. Right to life, liberty and property; c. Right to equality; d. Freedom from torture and ill-treatment; e. Right to adequate prison conditions; f. Freedom of movement; g. Recognition and protection of legal personality

and privacy; h. Freedom of thought, conscience, religion and

expression; i. Freedom of association; j. Protection of minorities


Self-determination of Peoples All the peoples have the fight of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development (Art. 1 [1], ICCPR).

Not available to all; only to IPs and ICCs Principle has now been elevated to GAPIL.

Right to External Self-Determination applies only when: [Review Lecture]

a. People under colonial rule; b. People under foreign domination.

Two Important Rights Covered by the Right of Self-determination: 1. Right to freely determine their political status

and freely pursue their economic, social and cultural development;

2. Right, for their own ends, to freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation based upon the principle of mutual benefit, and international law. In no case may people be deprived of its own means of subsistence.

Limitations of the Exercise of the Rights under the ICCPR Art. 4[1]. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin. Rights which may NOT be derogated: 1. Right to life; 2. Freedom from torture and other inhuman

punishment; 3. Freedom from enslavement or servitude; 4. Protection from imprisonment for inability to

perform contractual obligations; 5. protection form ex post facto laws; 6. Right to recognition everywhere as a person

before the law; 7. Freedom of though conscience and religion.

International Covenant of Economic, Social and

Cultural Rights (ICESCR) Adopted and opened for signature, ratification

and accession by the U.U. Entered into force on January 23, 1976.

A legally binding treaty for the protection of second generation human rights.

Substantive Rights Treated in the Covenant includes, among others: 1. Right to work and favorable conditions of work; 2. Right to form free trade union; 3. Right to special assistance for families; 4. Right Adequate standards of living; 5. Right to highest standard of physical and mental

health; 6. right to education; 7. Right to enjoyment of cultural and scientific

benefits. Limitation in the exercise of Rights: Art. 4. The State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

INTERNATIONAL HUMANITARIAN LAW

………………………………………… Branch of PIL which governs armed conflict to the end that the use of violence is limited and that human suffering is mitigated or reduced by regulating or limiting the means of military operations and by protecting persons who do not or no longer participate in hostilities (Magallona, p. 291). It does not apply to incidents or acts of terrorism unless they fall within the characterization of an international armed conflict; or of non-international or internal armed conflict.

Human Rights Law International Humanitarian Law

Governs the relations between the State and the individual

Governs armed conflict, regulating the means and methods of warfare and providing protection to victims of the armed conflict

Applies at all times and in all places

Applies only in times and places of armed conflict

Some rights may, at times, be subject to derogation

No derogation allowed

Fundamental Principles 1. Parties to armed conflict are prohibited from

employing weapons or means of warfare that cause unnecessary damage or excessive suffering;


2. Parties to armed conflict shall distinguish between civilian populace from combatants and spare the former from military attacks;

3. Persons hors de combat and those who do not take part in hostilities shall be protected and treated humanely without any adverse distinction;

4. It is prohibited to kill or injure an enemy who surrenders or who is a hors de combat;

5. The wounded and the sick shall be protected and cared for by the party who is in custody of them;

6. Parties who captured civilians and combatants shall respect their right to life, dignity, conviction and other personal rights.

hors de com·bat [adjective]

[French , "out of the fight"]

No longer able to participate: out of action

and often in a seriously wounded condition. A person is hors de combat if – 1) He is in the power of an adverse party to the

conflict; 2) Incapable of defending himself provided he

abstains from any hostile act and does not attempt to escape;

3) He clearly expresses an intention to surrender.

Categories of Armed Conflict:

A. International Armed Conflict – These are conflicts in which at least two States are involved. The Common Article 2 of the Geneva Conventions defines an international armed conflict as including all cases of declared war or of any other armed conflict which may arise between two or more States which are parties to the Conventions, even if the State of war is not recognized by one of them and all cases of partial or total occupation of the territory of a State Party, even if the said occupation meets with no armed resistance. International armed conflict is governed by the Geneva Conventions and Additional Protocol I (Sarmiento, 2009).

B. Internal Armed Conflict – These are conflicts

which are restricted to the territory of a single State, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. They are governed by the Common Article 3 to the 4 Geneva Conventions and by the Additional Protocol II (Sarmiento, 2009).

Test for Determining the Existence of an Internal Armed Conflict – Whether there is a resort to armed force between States or protracted armed

violence between governmental authorities and organized armed groups within a State. C. Internationalized Armed Conflict – In case of

an international armed conflict breaking out on the territory of a State, it may become international if: a. Another State intervenes in that conflict

through its troops; and b. Some participants of such internal armed

conflict act on behalf of the other State (Prosecutor vs. Tadic, ICTY 1995).

D. War of National Liberation – Under Protocol I,

Article 1[4], a war of national liberation is a conflict in which peoples are fighting against colonial domination and alien occupation and against racists regimes in the exercise of their right of self-determination, as enshrined in the UN Charter and the Declaration of Principles of International Law concerning friendly relations and co-operation among States in accordance with the UN Charter (Sarmiento, 2009).

Martens Clause – a clause which states ― in cases not covered by this Protocol or by any other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of conscience.‖ (Art. 1, Par. 2, Protocol Additional to the Geneva Conventions, June 8, 1977).

Treatment of Civilians Civilian – is any person who does not belong to armed forces and who is not a combatant. In case of doubt on whether or not a person is a civilian, that person shall be considered a civilian. Civilian population – comprises all persons who are civilians. The presence within the civilian population of individuals who do not come within the definition of civilians do not deprive the population of its civilian character (Protocol I, Article 50). Note: Civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of IL, shall be observed in all circumstances: 1) Civilian population as such, as well as individual

civilians shall not be the object of attack. Acts or threats of violence, the primary purpose of which


is to spread terror among the civilian population are prohibited;

2) Attack against the civilian population or civilians by way of reprisals are prohibited (Protocol I, Article 51).

Prisoners of War [POW]

POWs are entitled to the following basic protections: 1) They may only be transferred by the detaining

power to a power which is also a party to the Geneva Convention III (art. 12);

2) They must at all times be humanely treated. No POW may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried but in his interest. They must at all times be protected, particularly against acts of violence or intimidation or insults and public curiosity. Measures of reprisals against POWs are prohibited (Art. 13);

3) They shall be free of charge for their maintenance and for medical attention required by their state of health (Art. 15);

4) They shall be treated alike by the detaining power, without any adverse distinction based on race, nationality, religious belief, or political opinions, or any other distinction founded on similar criteria (Article 16);

5) Women shall be treated with all regard due to their sex and shall in all cases benefit by treatment as favorable as granted to men (Article 14);

6) Women shall be held in quarters separated from men’s quarters. They shall be under immediate supervision of women. Nevertheless, in cases where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units (Protocol I, Article 75 [5]).

Rights of Prisoners of War: [1949 Geneva Convention] 1) To be treated humanely; 2) Not subject to torture; 3) Allowed to communicate with his family; 4) Receive food, clothing, religious articles,

medicine; 5) Bare minimum information; 6) Keep personal belongings; 7) Proper burial; 8) Group according to nationality; 9) Establishment of an information bureau; 10) Repatriation for the sick and wounded.

INTERNATIONAL CRIMINAL LAW [ICL]

…………………………………………

Branch of PIL which proscribes specified acts as international crimes, provides for their prosecution and punishment, and governs relations of States with respect to individual criminal liability and its enforcement. International Crime: is such act universally recognized as criminal, which is considered a grave matter of international concern and foe some valid reason cannot be left within the exclusive jurisdiction of the State that would have control over it under ordinary circumstances (US Military Tribunal at Nuremberg, Feb. 19, 1948). General Principles in ICL 1. Principle of Legality – an individual may only

be criminally liable and punished of an act which is declared by international law as criminal offense.

Note: akin to the principle of Nullum crimen nulla poena sine lege.‖

2. Principle of Non-retroactivity – no person

shall be criminally responsible for act/s done prior to the declaration making criminal those act/s. (Prospectivity of Laws).

3. Principle of ne bis in idem (not twice for the same) – no person shall be punished and tried more than once for the same offense.

Note: This is akin to the rule on double jeopardy.

4. Principle of individual Criminal Liability – an

individual who commits a crime under international law individually liable for punishment, without any distinction based on official capacity.

5. Principle of Superior Responsibility (Respondeat Superior)– a superior is held criminally liable for failure to prevent subordinates from committing unlawful acts, in view of his command and control over them and liable as well for their crimes.

6. Principle of Mens Rea – the material elements of a crime must be committed with intent and knowledge. A person has intent where:

i. In relation to conduct, that person means to engage in the conduct;

ii. In relation to a consequence, that person means to cause that


consequence or is aware that it will occur in the ordinary course of event.

Knowledge – means awareness that a circumstance exists or a consequence will occur in the ordinary course of events.

International Criminal Court [ICC] First treaty based, international criminal court established to promote the rule of law and ensure that the gravest international crimes do not go unpunished (art. 1, Rome Statute). Jurisdiction of the ICC: 1. The crimes of Genocide; 2. Crimes Against Humanity; 3. War Crimes; 4. The crimes of Aggression. Principle of Complementarity The ICC shall be complementary to national criminal jurisdictions of States. It gives primacy over the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes. Exceptions: 1) Where the national proceedings are conducted

to shield the person concerned from criminal responsibility;

2) There is unjust delay in the national proceedings;

3) The national proceedings are not conducted independently or with impartiality.

Main Jurisdictional Rules Governing the ICC The Rome Statute provides for the following Rules: 1. Jurisdiction ratione materia - ICC’s jurisdiction is

limited to those crimes under its jurisdiction. 2. Jurisdiction ratione temporis – ICC has

jurisdiction only with crimes committed after the entry into force of its Statute [July 1, 2002].

3. Jurisdiction ratione loci – ICC has jurisdiction over crimes committed in the territory of States Parties, without respect to nationality of the offender.

4. Jurisdiction ratione personae – ICC has jurisdiction over the nationals of a State party as to crimes within the ICC’s jurisdiction.

Note: Trial in absentia is NOT allowed under the ICC rules (Art. 63, Rome Statute).

International Criminal Court [ICC]

International Court of Justice [ICJ]

As to Nature of jurisdiction

Has criminal jurisdiction to prosecute individuals

Does not have criminal jurisdiction to prosecute

individuals

As to Parties

To prosecute individuals for genocide, Crimes against humanity, war

crimes and the crime of aggression

It is a civil tribunal that

deals primarily with disputes between Sates

As to Independence from UN

The ICC is independent of the UN

The ICJ is a principal judicial organ of the UN

As to Nature of the Tribunal

Criminal tribunal Civil tribunal

Recognized Crimes Under International Law 1. GENOCIDE UN Concept of Genocide: A denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings (UN General Assembly Resolution No. 96[1]). Elements of Genocide: 1. Intent to destroy, in whole or in part, a national,

ethnical, racial, or religious group; 2. Commission of the following acts –

a) killing members of the group; b) causing serious bodily or mental harm to

members of the group; c) Deliberately inflicting on the group

conditions of life calculated to bring about its physical destruction, in whole or in part;

d) imposing measures intended to prevent births within the groups;

e) forcibly transferring children of the group to another group.

Note: Killings committed by a single perpetrator are enough to establish the material element of the crime of genocide and it is possible to conceive that the accused harbored the plan to exterminate an entire group without this intent having been supported by any organization in which other individuals participated (Prosecutor vs. Jelisic, ICTY 1999). 2. CRIMES AGAINST HUMANITY A crime against humanity involves the commission of certain inhumane acts, such as murder, torture, rape, sexual slavery, persecution, and other acts, under certain context: they must be part of a widespread or systematic attack directed against a civilian population (Cryer, et al. An Introduction to International Criminal Law and Procedure. 2010).


Crimes Against Humanity

War Crimes

May occur even in the absence of an armed conflict

May only occur during an armed conflict

Requires a context of widespread or systematic commission

Does no require such context

Focused on the protection of victims regardless of their nationality or affiliation

Focuses on protecting enemy nationals or persons affiliated with the other party to the conflict

Concerns actions directed primarily against civilian population

Regulates conduct even on the battlefield and against military objectives

Elements: 1. Widespread or systematic attack such as –

a) murder; b) enslavement; c) extermination; d) forcible transfer; e) imprisonment; f) torture; g) rape and other forms of sexual violence; h) persecution;

2. Committed against any civilian population; 3. Perpetrator intentionally directs such attacks on

civilian population. 3. WAR CRIMES A war crime is a serious violation of the laws and customs applicable in armed conflict which gives rise to individual criminal responsibility.

The law on war crimes is primarily hinged on the customary laws of ―just war‖ and the governing Geneva Conventions which provide rules and parameters for waging a war.

General Acts Punishable as War Crimes: 1. Violence and mistreatment of non-combatants

[including POWs, civilians, wounded and the sick];

2. Attacks on prohibited targets;

Principle of Distinction – a customary rule in IHL that requires belligerents to distinguish between military objectives and the population and objects, and to direct their operations only against military objectives.

Military Objectives – include combatants, whether on or off duty, as well as objects, which by their nature, make an effective contribution to military action and whose total or partial destruction, capture, or neutralization, in the circumstances ruling the time, offers a definite military advantage.

3. Inflicting excessive civilian damage.

Principle of Proportionality – even where the attack is directed against a military objective, the anticipated incidental civilian damage must not be disproportionate to the anticipated military advantage (Prosecutor vs. Kupreskic, ICTY, 2000).

4. Destruction, appropriation, seizure, and pillage

of property;

Pillage: stealing of possessions: the theft of

goods from a place using force, especially during a war.

5. Use of prohibited weapons and methods of

warfare. Note: See also RA 9851 – The Philippine Act of Crimes Against International Humanitarian Law and other Crimes Against Humanity, in Criminal Law Reviewer. Terrorism: Any act of violence or threat thereof notwithstanding its motives or intentions perpetrated to carry out an individual or collective criminal plan with the aim of terrorizing people or threatening to harm them or imperiling their lives, honor, freedoms, security or rights or exposing the environment or any facility or public or private property to hazards or occupying or seizing them, or international facilities, or threatening the stability, territorial integrity, political unity or sovereignty of independent States (Article 1, Convention of Organization of Islamic Conference on Combating International Terrorism at Quagadougou, July 1, 1999). NOTE: The international community has not yet achieved an agreement as to the generally accepted definition of ―terrorism‖ for the purpose of formulating it as an international crime under an international convention (Magallona, p. 351). However, terrorism acts can be prosecuted in an international court at present ONLY if they amount to war crimes or crimes against humanity.


INTERNATIONAL LAW OF THE SEA

…………………………………………

Kinds of Waters [belonging to Some States] 1. Internal or national waters – bodies of water

within the land mass, among them are: a. Rivers; b. Bays and gulfs; c. Strait; d. Canals.

2. Archipelagic waters – are the waters enclosed

by the archipelagic baselines, regardless of their depth or distance from the shore.

Sovereignty of the archipelagic State extends to

the archipelagic waters, but subject to right of innocent passage for [merchants] of all of States. Its sovereignty also extends to the superjacent air space of the archipelagic water, subjacent seabed and subsoil and the resources contained therein.

Archipelago – a group of islands, including parts of islands, interconnecting waters, and other natural features which are closely interrelated in such islands, waters and other natural features which form an intrinsic geographical, economic and political entity, or which historically has been regarded as such. Two Kinds: a. Coastal – situated close to a mainland and may

be considered a part thereof, like Loften Islands, Norway.

b. Mid-ocean – situated in the ocean at such distance from the coasts of firm land, like Indonesia.

Archipelagic State: is a State made up wholly of one or more archipelagos. An archipelagic Sate may designate sea lanes and air routes thereabove, suitable for continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and adjacent to its territorial sea. All ships and aircraft enjoy the right of passage in such sea lanes and air routes (UNCLOS, Art. 53 [1, 2]). Archipelagic Sea Lanes – means the exercise in accordance with the Law of the Sea Convention of the rights of navigation and over-flight in the normal mode solely for the purpose of continuous, expeditious and unobstructed transit between one part of the high seas or an exclusive economic zone and another part of the high seas or exclusive economic zones (UNCLOS, Art. 53 [3]).

3. Territorial Sea – the belt of the sea located between the coast and internal waters of the coastal State on the one hand and the high seas on the other, extending up to 12 nautical miles from the low-water mark, or in case of archipelagic States, from the baselines.

Baseline – is a line from which the breadth of the territorial sea, the contiguous zone and the EEZ is measured in order to determine the maritime boundary of the coastal State. Types of Baselines: a. Normal Baseline – the territorial sea is simply

drawn fro the low-water mark of the coast, to the breath claimed, following its sinuousness and curvatures but excluding the internal waters in the bays and gulfs.

b. Straight Baseline – where the coastline is deeply indented and cut into, of if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining the appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured (Art. 7, UNCLOS).

Limitations on the Use of Straight Baselines: 1) Must not depart to any appreciable extent fro the

general direction of the coast. 2) The sea areas lying within the straight baselines

must be sufficiently close to the land domain to be subject to the regime of internal waters;

3) Straight baselines shall not be drawn to and from low-tide elevations, unless lighthouses of similar installations which are permanently above sea level have been built on them, and unless the baselines to and from low-tide elevations have received general international recognition; and

4) May not be applied by State in such a manner as to cut off the territorial sea of another State from the high seas or an EEZ (Magallona, 2005).

Note: Economic interests peculiar to the region concerned, the reality and the importance of which are clearly evidenced by long usage may be taken into account in drawing straight baselines (Art. 7[5], UNCLOS). Innocent Passage – means navigation through the territorial sea of a State for the purpose of traversing that sea without entering the internal waters, or proceeding to or from internal waters. Passage is innocent if it is not prejudicial to the peace, good order or security of the coastal state. It is required that the passage be continuous and


expeditious, although a ship is allowed to stop and anchor if this is incidental on account of force majeure or is required in order to assists persons, ships or aircraft in danger or distress. Transit Passage – is the right to exercise freedom of navigation and over-flight solely for the purpose of continuous and expeditious transit through the straits used for international navigations, i.e., between two areas of the high seas or between two EEZ. All ships and aircraft enjoy the right of transit passage.

Innocent Passage Transit Passage

Pertains only to navigation of ships

Includes right of over-flight

Requires submarine and other underwater

vehicles to navigate on the surface and to show

their flag

No requirement

specially applicable to submarines

Can be suspended Cannot be suspended

In designation of sea lanes and traffic

separation schemes, the coastal State shall only

take account of the recommendations of the competent international

organization

Designation of sea lanes and traffic separation schemes is subject to adoption by competent

international organization upon

proposal and agreement of States bordering the

straits.

Note: The coastal State may, without discrimination in form or in fact among foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall take effect only after having been duly published (Art. 25[3], UNCLOS). 4. Contiguous Zone – extends up to 12 nautical

miles from the territorial sea. The coastal State may not extend it beyond 24 nautical miles from the baseline. The coastal State may exercise limited jurisdiction over the contiguous zone to – a. prevent infringements of customs, fiscal,

immigration or sanitary laws and regulations within its territory or territorial sea; and

b. punish infringement of the above laws and regulations committed within its territory.

5. Exclusive Economic Zone [EEZ] – it is an area

beyond and adjacent to the territorial sea, not extending beyond 200 nautical miles from the baselines.

Not part of the territory but exclusive economic benefit is reserved for the country. Thus, the coastal State has – 1) Sovereign rights for the purpose of exploring

and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from waters, currents and winds;

2) Jurisdiction with regard to the establishment and use of artificial islands, installations and structures; marine scientific research; the protection and preservation of marine environment;

3) Other rights and duties provided for in [Art. 56, UNCLOS].

Limitations of Right The coastal State has the right to enforce all

laws and regulations enacted to conserve and manage the living resources in the EEZ. It may board and inspect a ship, arrest a ship and its crew and institute judicial proceedings against them. Arrested vessels and their crews may be required to post reasonable bond or any other form of security. However, they must be promptly released upon posting of bond.

In the absence of agreement to the contrary by the States concerned, the UNCLOS does not allow imprisonment or any other form of corporal punishment. However, in case of arrest and detention, foreign vessels, it shall promptly notify the flag state of the action taken.

Coastal state has the exclusive right to construct, authorize and regulate the construction, operation and use of structures and artificial islands. However, they may not be established where interference may be caused to the use of recognized sea lanes essential to internal navigation.

Coastal State may establish safety zones around such artificial islands provided it shall not exceed 500 meter around the artificial islands and installations, unless otherwise authorized by generally accepted international standards or recommended by the competent international organization.

Resolution of Conflicts regarding the attribution of rights and jurisdiction in the EEZ: Conflict should be resolved on the basis of equity and in the light of all the relevant circumstances,


taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole (Art. 59, UNCLOS). 6. Continental Shelf – is the seabed and subsoil

of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles for the baselines where the outer edge of the continental margin does not extend up to that distance (Art. 76[1]), UNCLOS).

Continental Margin: comprises the submerged prolongation of the land mass of the coastal State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof (Art. 76[3], UNCLOS). Rights Over the Continental Shelf: a. The coastal State has sovereign rights over the

continental shelf for the purpose of exploring and exploiting its natural resources. However, it does not form part of the territory of the Coastal State. The rights are exclusive in the sense that is

the coastal state does not explore the continental shelf or exploit its natural resources; no one may undertake theses activities without the express consent of the coastal state.

The rights of the coastal State over continental shelf do not depend on occupation, effective or notional, or on any express proclamation.

b. The coastal State shall have the exclusive right

to authorize and regulate drilling on the continental shelf for all purposes (Art. 81, UNCLOS).

7. The High Seas – it is treated as res communes

or res nullus, and thus, are not territory of a particular State. The waters which do not constitute the internal waters, archipelagic waters, territorial sea and EEZ. They are beyond the jurisdiction and sovereign rights of States.

Main Constituents of the Freedom of the High Seas:

i. Freedom of navigation; ii. Freedom of over-flight; iii. Freedom to lay submarine cables and

pipelines; iv. Freedom to construct artificial islands and

other installations permitted under international law;

v. Freedom of fishing; vi. Freedom of scientific research (Art. 87,

UNCLOS). Flag State – means the State whose nationality the ship possesses; for it is nationality which gives the right to fly a country’s flag. Flag of Convenience – foreign flag under which a merchant vessel is registered for purposes of reducing operating costs or avoiding governmental regulations. Note: The UNCLOS concedes that a vessel shall have the nationality of the flag it flies, provided there is a ―genuine link‖ between the State whose flag in flown and the vessel. In particular, the flag State must effectively exercise jurisdiction and control in administrative, technical and social matters over the ship. Administrative and penal Jurisdiction: In the event of a collision or nay other incident of navigation concerning a ship on the high seas, involving penal or disciplinary responsibility of the master of any other person in the service of the ship, penal and administrative jurisdiction is now limited to: a. The flag of the State of the vessel alleged to be

responsible; and b. The State of nationality of the accused

(Sarmiento, PIL Bar Reviewer 2009).

INTERNATIONAL ENVIRONMENTAL LAW [IEL]

………………………………………… Stockholm Declaration on Human Environment

Adopted at the 1972 UN Convention on Human

Environment held in Stockholm, Sweden. Important Principles Contained in the Declaration: [Sarmiento, 2009] 1. Principle 1: Man has the fundamental right to

freedom, equality and adequate conditions of life, in an environment of a quality that permits life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.

2. Principle 21: States have the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment


of other States or areas beyond the limits of national jurisdiction. Principle of Good Neighborliness – prohibits States from using or permitting the use of its territory in a manner that is injurious to another State, or that other State’s persons or property. [Sic utere tuo ut alienum non laedas].

3. Principle 22: States shall cooperate to develop

further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.

Rio Declaration on Environment and

Development It reaffirms the Stockholm Declaration with the goal of establishing a new and equitable global partnership through the creation of new levels of cooperation among States, key sectors of societies and people (Sarmiento, 2009). Adopted at the 1992 Rio Conference on

Environment and Development [aka ―The Earth Summit‖].

Important Principles Contained in the Rio Declaration: 1. Principle 1 [The role of humans]: Human

beings are at the centre of concern for sustainable development.

2. Principle 2 [State sovereignty]: States have, in accordance with the Charter of the UN and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or areas beyond the limits of national jurisdiction.

This is also an embodiment of the Principle of Good Neighborliness.

3. Principle 3 [The right to development]: The

right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations.

Principle of Intergenerational Equity – stresses that in making choices about meeting the needs of present generation, future generations should NOT be sacrificed.

Note: This is the basis of the ruling in Oposa vs. Factoran, GR No. 101083, July 30, 1993, giving standing in court of minors representing themselves, as well as of future generation yet unborn.

4. Principle 7 [State cooperation to Protect Ecosystem]: States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.

Principle of Common but Differentiated

Responsibility: Recognizes that because developed States have contributed disproportionately to global environmental degradation, and because they command greater financial and technological resources, those States have a special responsibility in shouldering the burden of pursuing global sustainable development.

5. Principle 13 [Compensation for Victims of

Pollution and other Environmental Damage]: States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage.

6. Principle 15 [Precautionary Principle]: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.

7. Principle 16 [Internalization of Environmental Costs]: national authorities should endeavor to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting international trade and investment.

Polluter Pays Principle – the polluter who

creates an environmental harm generally


should be forced to pay the cost of remedying that harm.

8. Principle 18 [Notification of natural Disaster]:

States shall immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects on the environment of those States. Every effort shall be made by the international community to help States so afflicted.

9. Principle 24 [Warfare]: Warfare is inherently

destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.

10. Principle 26 [Resolution of Environmental Disputes]: States shall resolve all their environmental disputes peacefully and by appropriate means in accordance with the Charter of the UN.

THE UNITED NATIONS

………………………………………… An international organization created at San Francisco Conference held in the US from April 25 to June 26, 1945. UN succeeded the League of Nations and is governed by a Charter that came into force on October 24, 1945.

CHARTER OF THE UNITED NATIONS

WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom,

AND FOR THESE ENDS to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international

machinery for the promotion of the economic and social advancement of all peoples,

HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS Accordingly, our respective Governments, through representatives assembled in the city of San Francisco, who have exhibited their full powers found to be in good and due form, have agreed to the present Charter of the United Nations and do hereby establish an international organization to be known as the United Nations.

CHAPTER I PURPOSES AND PRINCIPLES

Article 1. The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.

Article 2. The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

1. The Organization is based on the principle of the sovereign equality of all its Members.

2. All Members, in order to ensure to a of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.


3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and. justice, are not endangered.

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security.

7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.

CHAPTER II MEMBERSHIP

Article 3. The original Members of the United Nations shall be the states which, having participated in the United Nations Conference on International Organization at San Francisco, or having previously signed the Declaration by United Nations of 1 January 1942, sign the present Charter and ratify it in accordance with Article 10.

Article 4. 1. Membership in the United Nations is open to a other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations.

2. The admission of any such state to membership in the Nations will be effected by a decision of the General Assembly upon the recommendation of the Security Council.

Article 5. A Member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended

from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. The exercise of these rights and privileges may be restored by the Security Council.

Article 6. A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be' expelled from the Organization by the General Assembly upon the recommendation of the Security Council.

CHAPTER III ORGANS

Article 7. 1. There are established as the principal organs of the United Nations: a General Assembly, a Security Council, an Economic and Social Council, a Trusteeship Council, an International Court of Justice, and a Secretariat.

2. Such subsidiary organs as may be found necessary may be established in accordance with the present Charter.

Article 8. The United Nations shall place no restrictions on the eligibility of men and women to participate in any capacity and under conditions of equality in its principal and subsidiary organs.

CHAPTER IV THE GENERAL ASSEMBLY

Composition

Article 9. 1. The General Assembly shall consist of all the Members of the United Nations.

2. Each Member shall have not more than five representatives in the General Assembly.

Functions and Powers

Article 10. The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters.

Article 11. 1. The General Assembly may consider the general principles of co-operation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments, and may make


recommendations with regard to such principles to the Members or to the Security Council or to both.

2. The General Assembly may discuss any questions relating to the maintenance of international peace and security brought before it by any Member of the United Nations, or by the Security Council, or by a state which is not a Member of the United Nations in accordance with Article 35, paragraph 2, and, except as provided in Article 12, may make recommendations with regard to any such questions to the state or states concerned or to the Security Council or to both. Any such question on which action is necessary shall be referred to the Security Council by the General Assembly either before or after discussion.

3. The General Assembly may call the attention of the Security Council to situations which are likely to endanger international peace and security.

4. The powers of the General Assembly set forth in this Article shall not limit the general scope of Article 10.

Article 12. 1. While the Security Council is exercising in respect of any dispute or situation the functions assigned to it in the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.

2. The Secretary-General, with the consent of the Security Council, shall notify the General Assembly at each session of any matters relative to the maintenance of international peace and security which are being dealt with by the Security Council and similarly notify the General Assembly, or the Members of the United Nations if the General Assembly is not in session, immediately the Security Council ceases to deal with such matters.

Article 13. 1. The General Assembly shall initiate studies and make recommendations for the purpose of:

a. promoting international co-operation in the political field and encouraging the progressive development of international law and its codification;

b. promoting international co-operation in the economic, social, cultural, educational, and health fields, an assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

2. The further responsibilities, functions and powers of the General with respect to matters mentioned in paragraph ) above are set forth in Chapters IX and X.

Article 14. Subject to the provisions of Article 12, the General Assembly may recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations.

Article 15. 1. The General Assembly shall receive and consider annual and special reports from the Security Council; these reports shall include an account of the measures that the Security Council has decided upon or taken to maintain international peace and security.

2. The General Assembly shall receive and consider reports from the other organs of the United Nations.

Article 16. The General Assembly shall perform such functions with respect to the international trusteeship system as are assigned to it under Chapters XII and XIII, including the approval of the trusteeship agreements for areas not designated as strategic.

Article 17. 1. The Genera Assembly shall consider and approve the budget of the Organization.

2. The expenses of the Organization shall be borne by the Members as apportioned by the General Assembly.

3. The Assembly shall consider and approve any financial and budgetary arrangements with specialize agencies referred to in Article 57 and shall examine the administrative budgets of such specialized agencies with a view to making recommendations to the agencies concerned.

Voting

Article 18. 1. Each member of the General Assembly shall have one vote.

2. Decisions of the General Assembly on important questions shall be made by a two- thirds majority of the members present and voting. These questions shall include: recommendations with respect to the maintenance of international peace and security, the election of the non-permanent members of the Security Council, the election of the members of the


Economic and Social Council, the election of members of the Trusteeship Council in accordance with paragraph 1 of Article 86, the admission of new Members to the United Nations, the suspension of the rights and privileges of membership, the expulsion of Members, questions relating to the operation of the trusteeship system, and budgetary questions.

3. Decisions on other questions, including the determination of additional categories of questions to be decided by a two-thirds majority, shall be made by a majority of the members present and voting.

Article 19. A Member of the United Nations which is in arrears in the payment of its financial contributions to the Organization shall have no vote in the General Assembly if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The General Assembly may, nevertheless, permit such a Member to vote if it is satisfied that the failure to pay is due to conditions beyond the of the Member.

Procedure

Article 20. The General Assembly shall meet in regular annual sessions and in such special sessions as occasion may require. Special sessions shall be convoked by the Secretary-General at the request of the Security Council or of a majority of the Members of the United Nations.

Article 21.The General Assembly shall adopt its own rules of procedure. It shall elect its President for each session.

Article 22. The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions.

CHAPTER V THE SECURITY COUNCIL Composition

Article 23. 1. The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist , the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other

purposes of the Organization, and also to equitable geographical distribution.

2. The non-permanent members of the Security Council shall be elected for a term of two years. In the first election of the non- permanent members after the increase of the membership of the Security Council from eleven to fifteen, two of the four additional members shall be chosen for a term of one year. A retiring member shall not be eligible for immediate re-election.

3. Each member of the Security Council shall have one representative.


Article 24. 1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VI, VIII, and XII.

3. The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration.

Article 25. The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

Article 26. In order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world's human and economic resources, the Security Council shall be responsible for formulating, with the assistance of the Military Staff Committee referred to in Article 12, plans to be submitted to the Members of the United-Nations for the establishment of a system for the regulation of armaments.

Voting

Article 27.1. Each member of the Security Council shall have one vote.


2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.

3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI and under paragraph 3 of Article 52 a party to a dispute shall abstain from voting.

Procedure

Article 28. 1. The Security Council shall be so organized as to be able to function continuously. Each member of the Security Council shall for this purpose be represented at times at the seat of the Organization.

2. The Security Council shall hold meetings at which each of its members may, if it so desires, be represented by a member of the government or by some other specially designated representative.

3. The Security Council may hold meetings at such places other than the seat of the Organization as in its judgment will best facilitate its work.

Article 29. The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.

Article 30. The Security Council shall adopt its own rules of procedure, including the method of selecting its President.

Article 31. Any Member of the United Nations which is not a member of the Security Council may participate, without vote, in the discussion of any question brought before the Security Council whenever the latter considers that the interests of that Member are specially affected.

Article 32. Any Member of the United Nations which is not a member of the Security Council or any state which is not a Member of the United Nations, if it is a party to a dispute under consideration by the Security Council, shall be invited to participate, without vote, in the discussion relating to the dispute. The Security Council shall any down such conditions as it deems just for the participation of a state which is not a Member of the United Nations.

CHAPTER VI PACIFIC SETTLEMENT OF DISPUTES

Article 33. 1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of a, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

Article 34. The Security Council may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute or situation is likely to endanger the maintenance of international peace and security.

Article 35. l. Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34 to the attention of the Security Council or of the General Assembly.

2. A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter.

3. The proceedings of the General Assembly in respect of matters brought to its attention under this Article will be subject to the provisions of Articles 11 and 12.

Article 36. 1. The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a situation of like nature, recommend appropriate procedures or methods of adjustment.

2. The Security Council should take into consideration any procedures for the settlement of the dispute which have already been adopted by the parties.

3. In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court.

Article 37. 1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the


means indicated in that Article, they shall refer it to the Security Council.

2. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the maintenance of international peace and security, it shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate.

Article 38. Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the parties to any dispute so request, make recommendations to the parties with a view to a pacific settlement of the dispute.

CHAPTER VII ACTION WITH RESPECT TO THREATS TO THE

PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION

Article 39. The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 4 and 42, to maintain or restore international peace and security.

Article 40. In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

Article 41. The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42. Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by

air, sea, or land forces of Members of the United Nations.

Article 43. 1. All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

2. Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided.

3. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes.

Article 44. When Security Council has decided to use force it shall, before calling upon a Member not represented on it to provide armed forces in fulfillment of the obligations assumed under Article 43, invite that Member, if the Member so desires, to participate in the decisions of the Security Council concerning the employment of contingents of that Member's armed forces.

Article 45. In order to enable the Nations to take urgent military measures, Members shall hold immediately available national air-force contingents for combined international enforcement action. The strength and degree of readiness of these contingents and plans for their combined action shall be determined, within the limits laid down in the special agreement or agreements referred to in Article 43, by the Security Council with the assistance of the Military Committee.

Article 46. Plans for the application of armed force shall be made by the Security Council with the assistance of the Military Staff Committee.

Article 47. 1. There shall be established a Military Staff Committee to advise and assist the Security Council on questions relating to the Security Council's military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament.


2. The Military Staff Committee consist of the Chiefs of Staff of the permanent members of the Security Council or their representatives. Any Member of the United Nations not permanently represented on the Committee shall be invited by the Committee to be associated with it when the efficient discharge of the Committee's responsibilities requires the participation of that Member its work.

3. The Military Staff Committee be responsible under the Security Council for the strategic direction of any armed forces paced at the disposal of the Security Council. Questions relating to the command of such forces shall be worked out subsequently.

4. The Military Staff Committee, with the authorization of the security Council and after consultation with appropriate regional agencies, may establish sub-committees.

Article 48. 1. The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.

2. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.

Article 49. The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council.

Article 50. If preventive or enforcement measures against any state are taken by the Security Council, any other state, whether a Member of the United Nations or not, which finds itself confronted with special economic problems arising from the carrying out of those measures shall have the right to consult the Security Council with regard to a solution of those problems.

Article 51. Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

CHAPTER VIII REGIONAL ARRANGEMENTS

Article 52. 1. Nothing in the present Charter the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate fur regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.

2. The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.

3. The Security Council shall encourage the development of pacific settlement of local disputes through such regional arrangements or by such regional agencies either on the initiative of the states concerned or by reference from the Security Council.

4. This Article in no way [prejudice] the application of Articles 34 and 35.

Article 53. 1. The Security Council shall, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state.

2. The term enemy state as used in paragraph 1 of this Article applies to any state which during the Second World War has been an enemy of any signatory of the present Charter.

Article 54. The Security Council shall at all times be kept fully informed of activities undertaken or in contemplation under regional arrangements or by regional agencies for the maintenance of international peace and security.


CHAPTER IX INTERNATIONAL ECONOMIC AND SOCIAL CO-

OPERATION

Article 55. With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

a. higher standards of living, fu employment, and conditions of economic and social progress and development;

b. solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and

c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

Article 56. All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.

Article 57. 1. The various specialized agencies, established by intergovernmental agreement and having wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields, shall be brought into relationship with the United Nations in accordance with the provisions of Article 63.

2. Such agencies thus brought into relationship with the United Nations are hereinafter referred to as specialized agencies.

Article 58. The Organization shall make recommendations for the co-ordination of the policies and activities of the specialized agencies.

Article 59. The Organization shall, where appropriate, initiate negotiations among the states concerned for the creation of any new specialized agencies required for the accomplishment of the purposes set forth in Article 55.

Article 60. Responsibility for the discharge of the functions of the Organization set forth in this Chapter shall be vested in the General Assembly and, under the authority of the General Assembly, in the Economic and Social Council, which shall have for this purpose the powers set forth in Chapter X.

CHAPTER X THE ECONOMIC AND SOCIAL COUNCIL

Composition

Article 611. The Economic and Social Council shall consist of fifty-four Members of the United Nations elected by the General Assembly.

2. Subject to the provisions of paragraph 3, eighteen members of the Economic and Social Council shall be elected each year for a term of three years. A retiring member shall be eligible for immediate re-election.

3. At the first election after the increase in the membership of the Economic and Social Council from twenty-seven to fifty-four members, in addition to the members elected in place of the nine members whose term of office expires at the end of that year, twenty-seven additional members shall be elected. Of these twenty-seven additional members, the term of office of nine members so elected shall expire at the end of one year, and of nine other members at the end of two years, in accordance with arrangements made by the General Assembly.

4. Each member of the Economic and Social Council shall have one representative.


Article 62. 1. The Economic and Social Council may make or initiate studies and reports with respect to international economic, social, cultural, educational, health, and related matters and may make recommendations with respect to any such matters to the General Assembly, to the Members of the United Nations, and to the specialized agencies concerned.

2. It may make recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all.

3. It may prepare draft conventions for submission to the General Assembly, with respect to matters falling within its competence.

4. It may call, in accordance with the rules prescribed by the United Nations, international conferences on matters falling within its competence.

Article 63. 1. The Economic and Social Council may enter into agreements with any of the agencies referred to in Article 57, defining the terms on which the agency concerned shall be brought into


relationship with the United Nations. Such agreements shall be subject to approval by the General Assembly.

2. It may co-ordinate the activities of the specialized agencies through consultation with and recommendations to such agencies and through recommendations to the General Assembly and to the Members of the United Nations.

Article 64. 1. The Economic and Social Council may take appropriate steps to obtain regular reports from the specialized agencies. may make arrangements with the Members of the United Nations and with the specialized agencies to obtain reports on the steps taken to give effect to its own recommendations and to recommendations on matters falling within its competence made by the General Assembly.

2. It may communicate its observations on these reports to the General Assembly.

Article 65.The Economic and Social Council may furnish information to the Security Council and shall assist the Security Council upon its request.

Article 66. 1. The Economic and Social Council shall perform such functions as fall within its competence in connection with the carrying out of the recommendations of the General Assembly.

2. It may, with the approval of the General Assembly, perform services at the request of Members of the United Nations and at the request of specialized agencies.

3. It shall perform such other functions as are specified elsewhere in the present Charter or as may be assigned to it by the General Assembly.

Voting

Article 67. 1. Each member of the Economic and Social Council shall have one vote.

2. Decisions of the Economic and Social Council shall be made by a majority of the members present and voting.

Procedure

Article 68. The Economic and Social Council shall set up commissions in economic and social fields and for the promotion of human rights, and such other commissions as may for the performance of its functions.

Article 69. The Economic and Social Council shall invite any Member of the United Nations to participate, without vote, in its deliberations on any matter of particular concern to that Member.

Article 70. The Economic and Social Council may make arrangements for representatives of the specialized agencies to participate, without vote, in its deliberations and in those of the commissions established by it, and for its representatives to participate in the deliberations of the specialized agencies.

Article 71. The Economic and Social Council may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence. Such arrangements may be made with international organizations and, where appropriate, with national organizations after consultation with the Member of the United Nations concerned.

Article 72. 1. The Economic and Social Council shall adopt its own rules of procedure, including the method of selecting its President.

2. The Economic and Social Council shall meet as required in accordance with its rules, which shall include provision for the convening of meetings on the request of a majority of its members.

CHAPTER XI DECLARATION REGARDING NON-SELF-

GOVERNING TERRITORIES

Article 73. Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well- being of the inhabitants of these territories, and, to this end:

a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses;

b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the


particular circumstances of each territory and its peoples and their varying stages of advancement;

c. to further international peace and security;

d. to promote constructive measures of development, to encourage research, and to co-operate with one another and, when and where appropriate, with specialized international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and

e. to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XII and XIII apply.

Article 74. Members of the United Nations also agree that their policy in respect of the territories to which this Chapter applies, no less than in respect of their metropolitan areas, must be based on the general principle of good-neighborliness, due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters.

CHAPTER XII INTERNATIONAL TRUSTEESHIP SYSTEM

Article 75. The United Nations shall establish under its authority an international trusteeship system for the administration and supervision of such territories as may be placed thereunder by subsequent individual agreements. These territories are hereinafter referred to as trust territories.

Article 76. The basic objectives of the trusteeship system, in accordance with the Purposes of the United Nations laid down in Article 1 of the present Charter, shall be:

a. to further international peace and security;

b. to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement;

c. to encourage respect for human rights and for fundamental freedoms for all without : as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world; and

d. to ensure equal treatment in social, economic, and commercial matters for all Members of the United Nations and their , and also equal treatment for the latter in the administration of justice, without prejudice to the attainment of the foregoing objectives and subject to the provisions of Article 80.

Article 77. 1. The trusteeship system shall apply to such territories in the following categories as may be placed thereunder by means of trusteeship agreements:

a. territories now held under mandate;

b. territories which may be detached from enemy states as a result of the Second World War; and

c. territories voluntarily placed under the system by states responsible for their administration.

2. It will be a matter for subsequent agreement as to which territories in the foregoing categories will be brought under the trusteeship system and upon what terms.

Article 78. The trusteeship system shall not apply to territories which have become Members of the United Nations, relationship among which shall be based on respect for the principle of sovereign equality.

Article 79. The terms of trusteeship for each territory to be placed under the trusteeship system, including any alteration or amendment, shall be agreed upon by the states directly concerned, including the mandatory power in the case of territories held under mandate by a Member of the United Nations, and shall be approved as provided for in Articles 83 and 85.

Article 80. 1. Except as may be agreed upon in individual trusteeship agreements, made under Articles 77, 79, and 81, placing each territory under the trusteeship system, and until such agreements have been concluded, nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.


2. Paragraph 1 of this Article shall not be interpreted as giving grounds for delay or postponement of the negotiation and conclusion of agreements for placing mandated and other territories under the trusteeship system as provided for in Article 77.

Article 81. The trusteeship agreement shall in each case include the terms under which the trust territory will be administered and designate the authority which will exercise the administration of the trust territory. Such authority, hereinafter called the administering authority, may be one or more states or the Organization itself.

Article 82. There may be designated, in any trusteeship agreement, a strategic area or areas which may include part or all of the trust territory to which the agreement applies, without prejudice to any special agreement or agreements made under Article 43.

Article 83. 1. All functions of the United Nations relating to strategic areas, including the approval of the terms of the trusteeship agreements and of their alteration or amendment, shall be exercised by the Security Council.

2. he basic objectives set forth in Article 76 shall be applicable to the people of each strategic area.

3. The Security Council shall, subject to the provisions of the trusteeship agreements and without prejudice to security considerations, avail itself of the assistance of the Trusteeship Council to perform those functions of the United Nations under the trusteeship system relating to political, economic, social, and educational matters in the strategic areas.

Article 84. It shall be the duty of the administering authority to ensure that the trust territory shall play its part in the maintenance of international peace and security. To this end the administering authority may make use of volunteer forces, facilities, and assistance from the trust territory in carrying out the obligations towards the Security Council undertaken in this regard by the administering authority, as well as for local defense and the maintenance of law and order within the trust territory.

Article 85. 1. The functions of the United Nations with regard to trusteeship agreements for all areas not designated as strategic, including the approval of the terms of the trusteeship agreements and of their alteration or amendment, shall be exercised by the General Assembly.

2. The Trusteeship Council, operating under the authority of the General Assembly, shall assist the General Assembly in carrying out these functions.

CHAPTER XIII THE TRUSTEESHIP COUNCIL

Composition

Article 86.1. The Trusteeship Council shall consist of the following Members of the United Nations:

a. those Members administering trust territories;

b. such of those Members mentioned by name in Article 23 as are not administering trust territories; and

c. as many other Members elected for three-year terms by the General Assembly as may be necessary to ensure that the total number of members of the Trusteeship Council is equally divided between those Members of the United Nations which administer trust territories and those which do not.

2. Each member of the Trusteeship Council shall designate one specially qualified person to represent it therein.


Article 87. The General Assembly and, under its authority, the Trusteeship Council, in carrying out their functions, may:

a. consider reports submitted by the administering authority;

b. accept petitions and examine them in consultation with the administering authority;

c. provide for periodic visits to the respective trust territories at times agreed upon with the administering authority; and

d. take these and other actions in conformity with the terms of the trusteeship agreements.

Article 88. The Trusteeship Council shall formulate a questionnaire on the political, economic, social, and educational advancement of the inhabitants of each trust territory, and the administering authority for each trust territory within the competence of the General Assembly shall make an annual report to


the General Assembly upon the basis of such questionnaire.

Voting

Article 89. 1. Each member of the Trusteeship Council shall have one vote.

2. Decisions of the Trusteeship Council shall be made by a majority of the members present and voting.

Procedure

Article 90. 1. The Trusteeship Council shall adopt its own rules of procedure, including the method of selecting its President.

2. The Trusteeship Council shall meet as required in accordance with its rules, which shall include provision for the convening of meetings on the request of a majority of its members.

Article 91. The Trusteeship Council shall, when appropriate, avail itself of the assistance of the Economic and Social Council and of the specialized agencies in regard to matters with which they are respectively concerned.

CHAPTER XIV THE INTERNATIONAL COURT OF JUSTICE

Article 92. The International Court of Justice shall be the principal judicial organ of the United Nations. It shall function in accordance with the annexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter.

Article 93. 1. All Members of the United Nations are facto parties to the Statute of the International Court of Justice.

2. A state which is not of the United Nations may become a party to the Statute of the International Court of Justice on to be determined in each case by the General Assembly upon the recommendation of the Security Council.

Article 94. 1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.

2. If any party to a case fails to perform the obligations incumbent upon it under a judgment

rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give to the judgment.

Article 95. Nothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.

Article 96. 1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question.

2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

CHAPTER XV THE SECRETARIAT

Article 97. The Secretariat shall comprise a Secretary- General and such staff as the Organization may require. The Secretary-General shall be appointed by the General Assembly upon the recommendation of the Security Council. He shall be the chief administrative officer of the Organization.

Article 98. The Secretary-General shall act in that capacity in all meetings of the General Assembly, of the Security Council, of the Economic and Social Council, and of the Trusteeship Council, and shall perform such other functions as are entrusted to him by these organs. The Secretary-General shall make an annual report to the General Assembly on the work of the Organization.

Article 99. The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.

Article 100. 1. In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any government or from any other authority external to the Organization. They shall refrain from any action which might on their position as international officials responsible only to the Organization.


2. Each Member of the United Nations undertakes to respect the exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to influence them in the discharge of their responsibilities.

Article 101. 1. The staff shall be appointed by the Secretary-General under regulations established by the General Assembly.

2. Appropriate staffs shall be permanently assigned to the Economic and Social Council, the Trusteeship Council, and, as required, to other organs of the United Nations. These staffs shall form a part of the Secretariat.

3. The paramount consideration in the employment of the staff and in the determination of the conditions of service shall be the necessity of securing the highest standards of efficiency, competence, and integrity. Due regard shall be paid to the importance of recruiting the staff on as wide a geographical basis as possible.

CHAPTER XVI MISCELLANEOUS PROVISIONS

Article 102. 1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.

2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph I of this Article may invoke that treaty or agreement before any organ of the United Nations.

Article 103. In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

Article 104. The Organization shall enjoy in the territory of each of its Members such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.

Article 105. 1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.

2. Representatives of the Members of the United Nations and officials of the Organization shall

similarly enjoy such privileges and immunities as are necessary for the independent exercise of their functions in connection with the Organization.

3. The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.

CHAPTER XVII TRANSITIONAL SECURITY ARRANGEMENTS

Article 106. Pending the coming into force of such special agreements referred to in Article 43, as in the opinion of the Security Council enable it to begin the exercise of its responsibilities under Article 42, the parties to the Four-Nation Declaration, signed at Moscow, 30 October 1943, and France, shall, in accordance with the provisions of paragraph 5 of that Declaration, consult with one another and as occasion requires with other Members of the United Nations with a view to such joint action on behalf of the Organization as may be necessary for the purpose of maintaining international peace and security.

Article 107. Nothing in the present Charter shall invalidate or preclude action, in relation to any state which during the Second World War has been an enemy of any signatory to the present Charter, taken or authorized as a result of that war by the Governments having responsibility for such action.

CHAPTER XVIII AMENDMENTS

Article 108. Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.

Article 109. 1. A General Conference of the Members of the United Nations for the purpose of reviewing the present Charter may be held at a date and place to be fixed by a two-thirds vote of the members of the General Assembly and by a vote of any nine members of the Security Council. Each Member of the United Nations shall have one vote in the conference.

2. Any alteration of the present Charter recommended by a two-thirds vote of the conference


shall take effect when ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations including the permanent members of the Security Council.

3. If such a conference has not been held before the tenth annual session of the General Assembly following the coming into force of the present Charter, the proposal to call such a conference shall be placed on the agenda of that session of the General Assembly, and the conference shall be held if so decided by a majority vote of the members of the General Assembly and by a vote of any seven members of the Security Council.

CHAPTER XIX RATIFICATION AND SIGNATURE

Article 110. 1. The present Charter shall be ratified by the signatory states in accordance with their respective constitutional processes.

2. The shall be deposited with the Government of the Unite States of America, which shall notify a the signatory states of each deposit as well as the Secretary-General of the Organization when he has been appointed.

3. The present Charter shall come into force upon the deposit of by the Republic of China, France, the Union of Soviet Socialist, the United Kingdom of Great Britain and Northern Ireland, and the United States of America, and by a majority of the other signatory states. A protocol of the deposited shall thereupon be drawn up by the Government of the United States of America which shall communicate copies thereof to all the signatory states.

4. The states signatory to the present Charter which ratify it after it has come into force will become original Members of the United Nations on the date of the deposit of their respective ratifications.

Article 111. The present Charter, of which the Chinese, French, Russian, English, and Spanish texts are equally authentic, shall remain deposited in the archives of the Government of -the United States of America. Duly certified copies thereof shall be transmitted by that Government to the Governments of the other signatory states.

IN FAITH WHEREOF the representatives of the Governments of the United Nations have signed the present Charter.

DONE at the city of San Francisco the twenty-sixth day of June, one thousand nine hundred and forty-five.

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