COMPENDIOUS BAR

REVIEWER
ON POLITICAL LAW
Based on Bar Exam Syllabus

Nilo T. Divina
Enrique V. Dela Cruz, Jr.
Nasha Jemimah R. Reyes-Ferrer
Jennel L. Chu
Ma. Ninna Roem A. Bonsol
Peter Paolo P. Dim III
Joseph Lorenz A. Asuncion
Maria Carissa C. Guinto
Iyla Marie D. Ferrer
Norbert Peter R. Indunan
Joshua Cris F. Aguilar
Stephanie A. Serapio
Jonathan Victor S. Noel

2024 EDITION
 Philippine Copyright, 2024
FOREWORD
By
Nilo T. Divina Maria Carissa C. Guinto Much is always said about the grandeur of the legal profession, with
Enrique V. Dela Cruz, Jr. Iyla Marie D. Ferrer
Nasha Jemimah R. Reyes-Ferrer Norbert Peter R. Indunan its traditions and accoutrements seemingly out of reach for the
Jennel L. Chu Joshua Cris F. Aguilar common folk, and the fame, fortune and the best of life's things that
Ma. Ninna Roem A. Bonsol Stephanie A. Serapio await those who are admitted into its hallowed halls.
Peter Paolo P. Dim III Jonathan Victor S. Noel
Joseph Lorenz A. Asuncion At least, that is how it appears from the outside looking in.
But the truth is, admission to the legal profession is never a glamorous
ALL RIGHTS RESERVED
endeavor. It is as painful as it is complicated. It takes patience and
The author prohibits unauthorized reproduction of this book. No wits, humor and a healthy understanding of the human condition.
portion of this book shall be copied or reproduced in books, pamphlets,
outlines or notes, whether printed, machine copied, mimeographed, Most importantly, one must pass the Bar. After all, it is the ultimate
typewritten, photocopied, scanned or in any other form, manner or test to determine whether the examinee has learned enough of the law
technique for distribution or sale, without the written permission of the to make him or her worthy of being a member of the legal profession.
author. Any copy of this book without the corresponding number and
genuine signature of the author or his representative on this page, either We learn the law through reading. Constant and plenty of reading. In
proceeds from an illegitimate source or is in possession of one who has law school, the professor prescribes the book. For the bar, the
no authority to dispose thereof. examinee picks his reading materials. With nary a moment to waste,
the chosen book must be complete without being verbose, as well as
engaging and accurate. It must remove every little cloud on one's
understanding of the law.
Which is where reviewers like this one from the Professors of the
University of Sto. Tomas (UST) Faculty of Civil Law come in.
The Divina Bar Review Series, made by some of the country's most
respected legal luminaries and educators, is formatted in Q&A so that
legal concepts and principles, that may otherwise be difficult to
Serial No.
comprehend, become far more comprehensible for reviewees who
hope to pass, if not ace the bar, and equally useful for practitioners
ISBN 978-621-02-2322-4 who wish to refine their craft. Indeed, each book's reader-centered
approach makes it an essential resource for any person in need of
Published and Printed by:
added proficiency in the law.
CENTRAL BOOK SUPPLY, INC.
927 Quezon Avenue, Quezon City, Philippines Then again, this reviewer is not a treatise; it is not meant to dive deep
Email: infoAcentral.com.ph into the philosophy of the law. It is akin simply to a wrench that one
needs in order to finish a laborious task such as the Bar. Indeed, Bar

iii
 r
candidates can use this wrench from UST Law— it is as handy and
timely as it comes.
FOREWORD
I congratulate the UST Faculty of Civil Law on this welcome addition
As the various innovations and elaborate advancements in the
to a bar candidate's toolbox. Dean Nilo T. Divina, no doubt the
conduct of the Bar Examinations and the rules concerning admission
progenitor and benefactor for this work, is always looking for ways to
to the legal profession continue to transform how law graduates
help law students fulfill their dream of becoming a lawyer.
prepare for their journey towards the elusive title of Attorney, there is
For this, the legal education community is truly grateful. no doubt that this has challenged our traditional methods of training
law students and providing guidance regarding the rigors of Bar
Admission. The digital age has indeed found its way into the process
by instituting the revolutionary digital Bar Examinations. The
Dr. Anna Made Melanie B. Trinidad
implementation of regional Examinations also made an appearance in
Chairperson, Legal Education Board
the field. Taking the step even further, the Chairperson for the 2023
Bar Examination has lamented the need to "modernize the manner in
which we admit those who wish to join our profession if we are to
keep up with the best practices that other legal jurisdictions observe
and implement in their respective areas".
As the President of the Philippine Association of Law Schools, I
am confident that through this seemingly thick screen of novelty and
unfamiliarity in the conduct of the Bar Examination, our students'
goals remain the same: to demonstrate knowledge of the law and
exhibit the correct application of legal principles and jurisprudence.
Unsurprisingly, DivinaLaw is in the same boat as the Academe
with this idea, being composed of lawyers who also teach in various
law schools in the country. Their development of this collection of Bar
Reviewers is a huge boon to law graduates who intend to brave the
challenge of taking the 2023 Bar Examination. The extensive scope of
this compendium, coupled with the beloved Q&A format, is expected
to be helpful to Bar Takers looking for materials to hone their
substantive knowledge of the law. The incorporation of doctrines
arising out of Supreme Court decisions penned by Justice Ramon Paul
Hernando is likewise welcome, given that Bar Questions typically
include those authored by the designated Bar Chairperson. You may
see all of these in this collection dedicated to each Bar subject,

iv
presented in a simplified and easy-to-understand context — the
Compendious Bar Reviewers. This may well be one of the most PREFACE AND ACKNOWLEDGMENT
ambitious and useful reviewers this season.
Congratulations to DivinaLaw for this launch! Your efforts are After receiving heartfelt messages of commendation and gratitude
indeed commendable! from the 2023 Bar-takers who used the 2023 Divina Compendious
Bar Review Series, and upon seeing the results of the recent Bar
examinations, I am ecstatic and honored to present the 2024
Divina Compendious Bar Review Series.
This year, we take this book a leap higher with its revised,
updated and expanded contents. The 2024 Divina Compendious
ATTY. GEMYLITO L. FESTIN, LL.M. Bar Review Series now includes Commercial Law — the field
President and practice closest to my heart. This creation represents my
Philippine Association of Law Schools 30+ years of experience as a lawyer and academician. As the
sole author for this Bar subject in this series, it is effectively me
asking the questions to my students, to my examinees, and to my
reviewees. It is as if I am whispering to their ears the answers to
the Bar exam questions. It is as if I am lifting them up with a
hand because it is a product of love. It is a work of love.
This year's Compendious Bar Reviewer was revised, updated
and customized in strict accordance with the latest Bar Exam
Syllabus prescribed by this year's Bar Chairperson Associate
Justice Mario V. Lopez. The presentation follows the 2024 Bar
Examination Syllabi to serve as a seamless manual for the Bar-
takers. It was designed to lay a strong conceptual foundation
and assist candidates in their preparations.
This work is a compendium of fundamental legal principles,
designed in a question-and-answer format, deliberately crafted
to stimulate the test-taking experience for Bar Reviewees. The
questions and answers are based on the pertinent provisions of
law/s and regulation/s, past Bar Examinations, landmark and
recent Supreme Court cases, as well as the cases penned by
Justice M.V. Lopez. The questions were crafted to test the Bar
Reviewees' knowledge and application of the law. Quick
vi vii
answers were then provided to aid the reader in noting the For Labor Law: Alden Francis C. Gonzales, Harly
important concepts. Jayson U. Reyes, Jarodelyn N. Mabalot, Marifelle L. Isip,
Clarissa Joyce R. Gorreon, Karen A. De Villa, Maria
This 2024 edition would not have been possible without the
Frances Faye R. Gutierrez, and Iyla Marie D. Ferrer.
gracious collaboration of Central Book Supply Inc. I am grateful
to them for collaborating again with us and being our constant For Criminal Law: Lorenzo Luigi T. Gayya, Alwyn
partners in championing legal education. Faye B. Mendoza, Bianca Isabel D. Soriano, Danica Mae
M. Godornes, Edrea Jean V. Ramirez, Angelica Mae T.
This collection of Bar Reviewers for all Bar subjects was authored
Destajo, and Beatriz Anna S. Balbacal.
by lawyers from DivinaLaw—all with sterling academic
credentials, and many of whom are law professors. For Remedial Law: Ian Jerny E. De Leon, Krisyl M.
Cancino, Vaupetroanji J. Perla, Patricia Faith R. Lacuesta,
I wish to express my deep appreciation to the subject teams and
Jairus Vincent Z. Bernardez, Edbert Marcel S. Ragadio,
authors for their kind and heroic involvement in this project, as
Daverick Angelito E. Pacumio, John Edward F. Fronda,
they commit to produce academically competent lawyers in the
Maria Frances Faye R. Gutierrez, Beatriz Anna S.
country. Their names should all be mentioned:
Balbacal, Lorrence Kyle T. Mufioz, Joshua Ejeil A.
For Political Law: Enrique V. Dela Cruz Jr., Nasha Pascual, and Jovelynne C. Atag.
Jemimah R. Reyes-Ferrer, Jennel L. Chu, Ma. Ninna
For Legal and Judicial Ethics: Janna Mae B. Tecson,
Roem A. Bonsol, Peter Paolo P. Dim III, Joseph Lorenz
Nasha Jemimah R. Reyes-Ferrer, Terence Mark Arthur
A. Asuncion, Maria Carissa C. Guinto, Iyla Marie D.
S. Ferrer, Mark Vixen M. Dorado, Daverick Angelito E.
Ferrer, Norbert Peter R. Indunan, Stephanie A. Serapio,
Pacumio, John Edward F. Fronda, and Stephanie A. Serapio.
Joshua Cris F. Aguilar, and Jonathan Victor S. Noel.
I am grateful to the people behind DL Publishing for their
For Taxation Law: Lean Jeff M. Magsombol, Danica
continued commitment in producing academic materials for the
Mae M. Gordones, Izzel Jarviz M. Arzadon, Isabella A.
benefit of the legal community. May they continue to publish
Rodriguez, Ephraim P. Bie, Kara C. Ramos, and
more materials that will produce competent lawyers and Bar
Christian Gio R. Senarlo.
topnotchers.
For Civil Law: Alden Francis C. Gonzales, Danny E.
I am thankful to the Thomasian community for their unwavering
Bunyi, Janna Mae B. Tecson, Ciselie Marie T. Gamo-
support and for sharing with me the dream to produce more
Sisayan, Klinton M. Torralba, Marnelli A. Sales, Alfonso
lawyers to serve the nation, and to honor and glorify God. Thank
Roel D. Vargas, Julie Ann C. Manguiat, Kristina Mae C.
you to the school administration and faculty for prescribing the
Durana, Louis-Mari R. Opina, Iyla Marie D. Ferrer,
2023 Compendious Bar Review Series, which modesty aside, I
Alexandra Nicole D. Sugay, Daverick Angelito E. Pacumio,
claim, helped UST be consistently part of the top performing
and Angel Isah M. Romero.
schools in the Bar Examinations, and produce two home-grown

viii ix
Thomasians to be among the Top 10 examinees in the recent
TABLE OF CONTENTS
2023 Bar Examinations.
Page
I extend my gratitude to Attys. Ephraim P. Bie, Pio Vincent R.
Buencamino, and Nicolo Paolo M. Manikad for their kind words I. 1987 Philippine Constitution
and sharing their insights on how the 2023 Compendious Bar
Reviewer helped them in their Bar preparation journey. A. Definition, Nature, and Concepts of the Constitution 1
1. Declaration of Principles 7
Of course, I thank, too, the rest of the lawyers, members and
a. Democracy and Republicanism 9
staff of DivinaLaw. Without their competence, hard work, and
b. Renunciation of War 12
devotion this collection would not have been possible.
c. Supremacy of Civilian Authority over Military 13
I thank my wife, children, and my entire family for their love and 2. State Policies 15
encouragement as they remain my inspiration in honing my craft. a. Independent Foreign Policy 15
Finally, I thank the Father Almighty for giving us the wisdom b. Social Justice 17
and allowing us to honor and glorify Him through producing c. Sanctity of Family and Vital Role
legal educational materials. of Youth in Nation-Building 19
B. Amendment and Revision (1987 CONST.,
Art. XVII, Secs. 1-4; R.A. No. 6735) 19
Deo Omnis Gloria. C. National Territory (1987 CONST., Art. I;
UNCLOS, Arts. 1, 3-8, 33, 46-48, 50 and 55-58) 28
D. Separation of Powers, and Checks and Balances 54
NILO T. DIVINA E. State Immunity (1987 CONST., Art. XVI, Sec. 3;
P.D. No. 1445) 56
F. Delegation of Powers (1987 CONST.,
Art. VI, Secs. 1, 23(2) and 28(2)) 61
G. Fundamental Powers of the State — Police Power,
Eminent Domain and Taxation 65
Artn, and Limitations
1. Concept, Applicatio
(1987 C0NST., . III, Sec. 9; Art. VI, Sec. 28;
Art. XIV, sec. 4(3)) 65

XI
 TABLE OF CONTENTS TABLE OF CONTENTS

Page Page

2. Privileges, Inhibitions, and Disqualifications —

II. Legislative Department 1987 CONST., Art. VII, Secs. 6 and 13 137

A. Congress: Senate and House of Representatives 86 B. Executive and Administrative Powers

(1987 CONST., Art. VII, Secs. 1 and 17) 147
1. Compositions and Qualifications — 1987 CONST.,
Art. VI, Secs. 2-14 86 C. Power of Appointment (1987 CONST.,
Art. VII, Secs. 13, 15 and 16) 150
2. Privileges and Inhibitions — 1987 CONST.,
1. Regular and Ad Interim 150
Art. VI, Secs. 10, 11, and 13-14 97
2. With or without COA Confirmation 153
3. Quorum and Voting Majorities, and Discipline
of Members — 1987 CONST., Art. VI, Sec. 16 3. Midnight Appointments 154
102
B. Law-Making Process (1987 CONST., 4. Removal from Office 155
Art. VI, Secs. 26-27) 104 D. Power of Control and Supervision
C. Appropriation (1987 CONST., Art. VI, (1987 CONST., Art. VII, Sec. 17) 156
Secs. 24-25 and 29) 110 1. Executive Departments and Offices; Doctrine
D. Legislative Inquiries and Oversight Functions of Qualified Political Agency 156
(1987 CONST., Art. VI, Secs. 21-22) 114 2. Local Government Units - 1987 CONST.,
E. Declaration of Existence of State of War Art. X, Sec. 4 160
(1987 CONST., Art. VI, sec. 23) 119 E. Military Powers (1987 CONST., Art. VII, Sec. 18) 161
F. Power to Revoke/Extend the Suspension of the F. Pardoning Power and Executive Clemency
Privilege of the Writ of Habeas Corpus and (1987 CONST., Art. VII, Sec. 19) 172
Declaration of Martial Law (1987 CONST., G. Diplomatic Power (1987 CONST.,
Art. VII, Sec. 18) 120 Art. VII, Secs. 16 and 21) 175
G. Power of Impeachment (1987 CONST., H. Power relative to Appropriation Measures
Art. XI, Secs. 2-3) 123 (1987 CONST., Art. VI, Secs. 25(5) and 27(2);
H. Electoral Tribunals (1987 CONST., Art. VI, Sec. 17) 125 Art. VII, Sec. 20) 177
I. Commission on Appointments (1987 CONST., I. Veto Power (1987 CONST., Art. VI, Sec. 27) 181
Art. VI, Sec. 18; Art. VII, Sec. 16; Art. VIII, Sec. 8) 129 J. Residual Power (E.O. No. 292, Book III,
Title I, Chapter 7, Sec. 20) 183
III. Executive Department K. Removal from Office (1987 CONST., Art. XI, Sec. 2) 184
A. President and Vice President 134 L. Rules of Succession (1987 CONST.,
Art. VII, Secs. 7-12) 184
1. Term, Qualifications, and Election — 1987 CONST.,
Art. VII, Secs. 2-4 134

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IV. Judicial Department V. Constitutional Commissions (1987 Const., Art. I X)

A. Definition of Judicial Power A. Powers, Functions, and Jurisdiction (1987 CONST.,
(1987 CONST., Art. VIII, Sec. 1) 192 Art. IX-A, Sec.8; Art. IX-B, Sec. 3; Art. IX-C,
B. Judicial Review 193 Secs. 2-5, 9 and 11; Art. IX-D, Secs. 2-4) 218
1. Requisites 193 B. Composition and Qualifications of Members
a. Actual Case or Controversy 195 (1987 CONST., Art. IX-B, Sec. 1; Art. IX-C, Sec. 1;
Art. IX-D, Sec. 1) 237
b. Proper Party 195
c. Raised at the Earliest Possible Opportunity 197 C. Prohibited Offices and Interests
(1987 CONST, Art. IX-A, Sec. 2) 240
d. Necessary to the Determination
D. Review of Final Orders, Resolutions and Decisions 241
of the Case Itself 198
2. Exceptions 1. Rendered in the Exercise of Quasi-Judicial
198 242
Functions — 1987 CONST, Art. IX-A, Sec. 7
a. Political Questions 198
2. Rendered in the Exercise of Administrative
b. Moot Questions 199 243
Functions - 1987 CONST, Art. IX-A, Secs. 4 and 6
c. Advisory Opinions 200
3. Operative Fact Doctrine 200 VI. Bill of Rights (1987 Const., Art. III)
C. Fiscal Autonomy (1987 CONST., Art. VIII,
Secs. 3 and 10) 201 A. Due Process Clause; Procedural and Substantive
D. Appointments to the Judiciary Requirements (1987 CONST., Art. III, Sec. 1;
202 245
Art. XIII, Sec. 1)
1. Qualifications — 1987 CONST., Art. VIII, Sec. 7 202
1. Void-for-Vagueness Rule 252
2. Judicial and Bar Council — 1987 CONST.,
2. Judicial and Administrative Due Process 257
Art. VIII, Secs. 8 and 9 205
E. Supreme Court of the Philippines B. Equal Protection Clause (1987 CONST.,
207 257
Art. III, Sec. 1)
1. Composition — 1987 CONST., Art. VIII, Sec. 4 208
1. Requisites for Valid Classification 257
2. Procedural Rule-Making Power — 1987 CONST.,
2. Standards of Review 261
Art. VIII, Sec. 5 208
3. Disciplinary Powers - 1987 CONST., C. Arrest, Search and Seizure; Requisites;
Exclusionary Rule (1987 CONST., Art. III, Sec. 2) 264
Art. VIII, Sec. 11 210
4. Administrative Supervision — 1987 CONST., D. Privacy of Communication and Correspondence;
Art. VIII, Sec. 6 Exclusionary Rule (1987 CONST., Art. III, Sec. 3;
211
R.A. No. 4200); Informational, Decisional,
5. Jurisdiction — 1987 CONST., Art. VI, Sec. 30; 278
Locational Privacy
Art. VIII, Sec. 5 213

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E. Freedom of Speech and Expression (1987 CONST., N. Right against Involuntary Servitude
Art. III, Secs. 4 and 18(1)) 285 (1987 CONST., Art. III, Sec. 18) 334
1. Prior Restraint and Subsequent Punishment 285 O. Right against Excessive Fines, and Cruel and
2. Content-Based and Content-Neutral Regulations 286 Inhumane Punishments (1987 CONST.,
3. Facial Challenges and Overbreadth Doctrine Art. III, Sec. 19) 335
286
4. Tests for Valid Government Interference 288 p. Non-imprisonment for Debts (1987 CONST.,
Art. III, Sec. 20) 335
5. Doctrine of Privileged Communication —
Act No. 3815, Art. 354 291 VII. Citizenship (1987 Const., Art. IV)
F. Freedom of Religion (1987 CONST.,
Art. III, Sec. 5) 293 A. Filipino Citizens (1987 CONST., Art. IV, Secs. 1-2) 343
1. Non-Establishment and Free Exercise Clauses 293 B. Acquisition and Loss of Citizenship 353
2. Tests for Valid Government Interference 296 C. Retention and Re-acquisition of Citizenship
3. Separation of Church and State — 1987 CONST., (R.A. No. 9225) 355
Art. II, Sec. 6 298 D. Naturalization (C.A. No. 473, Secs. 2-4; C.A. No. 63,
G. Liberty of Abode and Right to Travel; as amended; A.M. No. 21- 07-22) 363
Limitations (1987 CONST., Art. III, Sec. 6) 300
H. Right to Information; Limitations (1987 CONST., VIII. Law on Public Officers
Art. II, Sec. 28; Art. III, sec. 7; Art. XVI, Sec. 10) 303
A. Public Officers; De Facto and De Jure 377
I. Right to Association (1987 CONST., Art. III, Sec. 8;
Art. XIII, Sec. 3; Art. IX-B, Sec. 2(5)) B. Civil Service; Scope, Appointments, Personnel
305 386
Actions, and Removal
J. Non-Impairment of Contracts (1987 CONST.,
1. Preventive Suspension and Dismissal from Service 427
Art. III, Sec. 10) 307
2. Illegal Dismissal, Reinstatement, and Back Salaries 430
K. Free Access to Courts and Adequate Legal
Assistance (1987 CONST., Art. III, Sec. 11; C. Accountability of Public Officers; Ombudsman
R.A. No. 9999) 308 (1987 CONST., Art. XI, Secs. 5-13; R.A. No. 6770,
as amended; R.A. No. 6713) 432
L. Rights under Custodial Investigation
(1987 CONST., Art. III, Sec. 12; R.A. No. 7438) 308
IX. Administrative Law
1. Requisites of a Valid Waiver 313
2. Exclusionary Rule 314 A. General Principles 459
M. Rights of the Accused (1987 CONST., B. Administrative Agencies; Definition, Types,
Art. III, Secs. 13-17, 21 and 22) 315 and Manner of Creation 459
C. Powers of Administrative Agencies 467

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D. Primary Administrative Jurisdiction 483 6. Effects of Denial and Cancellation of Certificate

E. Exhaustion of Administrative Remedies 484 of Candidacy due to Material Misrepresentation 510
7. Substitution of Candidates — B.P. Blg. 881, Sec. 77 510
X. Election Law 8. Nuisance Candidates and Effects of Declaration
of Nuisance Candidacy — B.P. Blg. 881, Sec. 69;
A. Suffrage; Qualification and Disqualification 511
R.A. No. 6646, sec. 5
of Voters (1987 CONST., Art. V, Sec. 1;
9. Disqualification of Candidates; Effects 512
R.A. No. 8189, Secs. 9 and 11) 487
E. Campaign 513
B. Registration of Voters; Inclusion and Exclusion
Proceedings (R.A. No. 8189; R.A. No. 10367) 487 1. Limitations on Expenses and Prohibited
Contributions — R.A. No. 7166, Sec. 13 516
1. Overseas Absentee Voting — R.A. No. 9189;
R.A. No. 10590 2. Lawful Election Propaganda — R.A. No. 9006 521
492
2. Local Absentee Voting — E.O. No. 157, Series of 1987; 3. Statement of Contributions and Expenses —
R.A. No. 7166, Sec. 12; R.A. No. 10380 R.A. No. 7166, Sec. 14 530
493
3. Persons Deprived of Liberty Voting — COMELEC F. Remedies 531
Resolution No. 9371, as may be amended 494 1. Pre-election 531
C. Political Parties and the Party-List System a. Petition for Disqualification 531
of Representation (1987 CONST., Art. VI, Sec. 5(2); b. Petition Not to Give Due Course or Cancel
Art. IX-C, Sec. 2 (5)); R.A. No. 7941) 496 Certificates of Candidacy — B.P. Blg. 881, Sec. 78.... 533
1 Registration — R.A. No. 7941, Sec. 5 502 c. Petition to Declare a Nuisance Candidate —
a. Grounds for Refusal or Cancellation B.P. Blg. 881, Sec. 69 536
of Registration — R.A. No. 7941, Sec. 6 503 2. During election 536
D. Candidacy 504 a. Petition to Postpone Elections —
1. Certificate of Candidacy — B.P. Blg. 881, Sec. 73 505 B.P. Blg. 881, Sec. 5 536
2. Ministerial Duty of COMELEC to Receive Certificates b. Petition to Declare Failure of Elections -
of Candidacy — B.P. Blg. 881, Sec. 76 506 B.P. Blg. 881, Sec. 6 536
3. Effect of Filing of Certificate of Candidacy — 3. Pre-Proclamation Controversy 539
B.P. Blg. 881, Sec. 66 506 4. Post-Proclamation 542
4. Eligibility and Material Misrepresentation — a. Election Contest 542
B.P. Blg. 881, Secs. 74 and 78 507 i. Election Protest 542
5. Withdrawal of Certificates of Candidacy — ii. Quo warranto 545
B.P. Blg. 881, Sec. 73 508 546
iii. Jurisdiction

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 TABLE OF CONTENTS TABLE OF CONTENTS

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(1) Presidential Electoral Tribunal — 1987 CONST., B. Sources of Obligations in International Law
Art. VII, Sec. 4 546 (Statute of the International Court of Justice, Art. 38) 625
(2) Senate Electoral Tribunal — 1987 CONST., C. Subjects of International Law 636
Art. VI, Sec. 17 546 D. Diplomatic and Consular Law (Vienna Convention on
(3) House of Representatives Electoral Tribunal — Diplomatic Relations; Vienna Convention on Consular
1987 CONST., Art. VI, Sec. 17 547 Relations) 643
(4) COMELEC - 1987 CONST., Art. IX-C, Sec. 2(2); E. Treaties; Vienna Convention on the Law of Treaties 655
B.P. Blg. 881, Secs. 250 and 253 548 F. Nationality and Statelessness (R.A. No. 9225; Hague
(5) RTC — R.A. No. 7166, Sec. 22; B.P. Blg. 881, Convention of 1930) 674
Secs. 251 and 253 550 G. Jurisdiction of States 680
(6) MTC - B.P. Blg. 881, Secs. 252-253 551 1. Territoriality Principle 683
G. Prosecution of Election Offenses (B.P. Blg. 881 2. Nationality Principle 689
as amended by R.A. No. 9369, Sec. 265) 555 3. Protective Principle 690
4. Universality Principle 691
XI. Local Governments 691
5. Passive Personality Principle
(1987 Const., Art. X; R.A. No. 7160)
6. Conflicts of Jurisdiction 692
A. Principles of Local Autonomy 559 H. Treatment of Aliens; Extradition and Deportation 694
B. Local Government Units 566 I. International Human Rights Law (The United
1. Powers of Local Government Units 577 Nations' Universal Declaration of Human Rights) 702
a. Police Power and General Welfare Clause 577 J. International Humanitarian Law (R.A. No. 9851) 712
b. Eminent Domain and Taxation 580 1. War Crimes, Genocide, and Other Crimes
c. Requisites of a Valid Ordinance; against Humanity — Sections 4-6 728
Local Initiative and Referendum 586 2. Jurisdiction and Double Jeopardy — Section 17 736
d. Corporate Powers 596 3. Irrelevance of Official Capacity — Section 9 738
2. Local Elective and Appointive Officials 603 4. Responsibility of Superiors — Section 10 739
3. Rules of Succession 609 5. Nonprescription — Section 11 740
4. Term Limitations and Recall 615
About the Authors 741
XII. Public International Law
- 000--
A. Doctrine of Incorporation and Transformation (1987
CONST., Art. II, Sec. 2; Art. VII, Sec. 21) 623

xx xxi
 1. 1987 Philippine Constitution
A. Definition, Nature, and Concepts of the Constitution

Q: What is the core foundation of the 1987 Constitution?

A: The sovereignty of the people is the core foundation of the
Constitution. It is for this reason that the First Principle in Article
II, Section 1 of the 1987 Constitution on the Declaration of
Principles and State Policies declares that "[tJhe Philippines is a
democratic and republican state. Sovereignty resides in the people
and all government authority emanates from them." Thus, by the
very nature of our system of government as democratic and
republican, supreme power and authority resides in the body of
the people, and for whom such authority is exercised.'

Q: Does the 1987 Constitution support the economic principle

of "laissezfaire" or less regulation of private business?
A: No. The Constitution is not made up of neoclassical
economics. It is the basic law. The principle of laissez faire has
long been denied validity in this jurisdiction. Far from embracing
the doctrine of laissez faire, the Constitution has enshrined a
policy of protecting human rights and social justice, with a view
toward rising productivity, full employment, and improving the
quality of life of the people.'

Macalintal v. COMELEC, G.R. No. 263590 and 263673, 27 June 2023,

2
Universal Robina Corporation v. Department of Trade and Industry, G.R. No.
203353, 14 February 2023.

1
2 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 3
ON POLITICAL LAW

Q: May the Congress create a new law reinstating a provision 3. Constitution of Government — Provides for a structure and
from a previous law that was already declared unconstitutional system of government; refers to the provisions outlining
by the Court?3 the organization of the government, enumerating its powers,
laying down certain rules relative to its administration
A: No. In the hierarchy of our laws, the Constitution is always and defining the electorate (Art. VI [Legislative Department];
supreme and any law, issuance or ordinance that is inconsistent Art. VII [Executive Department]; Art. VIII [Judicial
with it is a nullity.4 Once a law or provision of law has been Department]; Art. IX [Constitutional Commissions]).'
declared null for being contrary to the Constitution, a subsequent
reincorporation or reenactment of the same provision in a new Q: What are the rules on interpretation and construction of
law will not cure its nullity. The only exception to this is when the Constitution?
there are compelling circumstances to reverse the earlier conclusion.'
A: To interpret the provisions of the Constitution, the following
Q: What is the function of the Preamble? Is it a source of rules must be observed. First, verba legis - whenever possible,
enforceable rights or obligations? the words used in the Constitution must be given their ordinary
meaning except when technical terms are involved. Second, when
A: No, the Preamble is not a source of enforceable rights or there is ambiguity ratio legis et anima - the intent of the framers
obligations. It only sets down the origin, scope and purpose of as well as the history of times, conditions, and circumstances
the Constitution and may be used as an aid in ascertaining vague under which the Constitution was framed must be considered.
provisions in the body of the Constitution.' Third, ut res magis valeat quam pereat - the Constitution must
be interpreted as a whole, and its provisions should be construed
Q: What are the major parts of a constitution? together.'
A: The three major parts of a constitution are the following:
Q: Provide a brief background of the Philippine Constitutional
1. Constitution of Sovereignty — This refers to the provisions History.
pointing out the modes or procedure in accordance with
which formal changes in the Constitution may be made A: The history of the Philippine Constitution may be summarized
(Art. XVII [Amendments or Revisions]). as follows:

2. Constitution of Liberty — The series of prescriptions 1. The Constitution of Biak-na-Bato: Also known as the
setting forth the fundamental civil and political rights of Provisional Constitution of the Philippines, this Constitution
the citizens and imposing limitations on the power of the was created by the representatives of the revolution in
government as a means of securing the enjoyment of order to reflect the longings and aspirations of the Filipino
those rights (Art. III [Bill of Rights]). people. It was an almost exact copy of the Cuban

3 BAR 2014.
4 Manila Prince Hotel v. GSIS, G.R. No. 122156, 03 Febniary 1997.
5 Sameer Overseas Placement Agency Inc v. Cabiles, G.R. No. 170139, 05 August 2014.
6
Joaquin Bernas, S.J., The 1987 Philippine Constitution: A Comprehensive Reviewer, 1 7 Antonio Eduardo Nachura, Outline Reviewer in Political Law, 3 (2016 ed.).
(2011 ed.). Francisco v. House of Representatives, G.R. No. 160261, 10 November 2003.
4 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 5
ON POLITICAL LAW

Constitution of Jimaguayu, except for the four articles constitution.' On the other hand, the article on National
on Bill of Rights which its authors added.' Territory under the 1935 Constitution gave the following
points of references for the determination of Philippine
2. The Malolos Constitution. This creation of Felipe Calderon territory: (1) December 1898 Treaty of Paris, (2) November
was based on the constitutions of South American Republics, 1900 Treaty of Washington, (3) January 1930 Treaty
while the Bill of Rights thereon was substantially a copy between Great Britain and the United States, and lastly,
of the Spanish Constitution.10 (4) "all territory over which the present Government of
3. The American Regime and the Organic Acts. This the Philippine Islands exercises jurisdiction."'
includes the Treaty of Paris which provided for the 5. The 1973 Constitution. The Bill of Rights in the 1973
cession of the Philippines to the United States, the Constitution had minimal difference from its counterpart
instruction from US President McKinley dated 7 April in the 1935 Constitution. There are two rights that were
1900 which provided for an authorization and guide for added to wit: (1) the recognition of the people's right to
the establishment of a civil government in the Philippines access to official records and documents and the (2) right
as well as provided for the inviolable rules which added to speedy disposition of cases. To the right against unreasonable
the prohibition of bills of attainders and ex post facto searches and seizures, a second paragraph was added
laws, the Philippine Bill of 1902 which provided for a that evidence obtained therefrom shall be inadmissible
temporary administration of the affairs of the civil for any purpose in any proceeding.14 Moreover, the 1973
government, the Philippine Autonomy Act of 1916 also Constitution provided for a much clearer definition of
known as the Jones Law which was an act to declare the the National Territory which roughly divided it into
purpose of the people of the United States as to the three groups namely (1) the Philippine archipelago; (2)
future of the Philippine Islands and to provide an other territories belonging to the Philippines; and (3)
autonomous government for it, and the Tydings-Mcduffie Philippine waters, airspace, and submarine areas.15
Law of 1934 which guaranteed independence to the
Philippines and authorized the drafting of a Philippine 6. The 1987 Constitution. The aftermath of the Martial Law
Constitution where the government should be republican increased the people's clamor for a new constitution.
in form and the Constitution to be drafted should contain While the 1987 Constitution retained the republican
a Bill of Rights." system of government, it emphasized and created more
channels for the exercise of the sovereignty of the people
4. The 1935 Constitution. The Bill of Rights in the 1935
Constitution was reproduced largely from the report of
the Convention's committee on bill of rights. The report
was mostly a copy of the Bill of Rights in the Jones
Law, which in turn was borrowed from the American 12
Id.
"
Joaquin Bernas, S.J., The 1987 Philippine Constitution: A Comprehensive Reviewer, 7
(2011 ed.).
9Republic of the Philippines v. Sandiganbayan, G.R. No. 104768, 21 July 2003, 14 Republic of the Philippines v. Sandiganbayan, G.R. No. 104768. 21 July 2003,
Puno, J, separate opinion. Puno, J, separate opinion.
10 Id
15 Joaquin Bernas, S.J., The 1987 Philippine Constitution: A Comprehensive Reviewer,
11 (2011 ed.).
6 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 7
ON POLITICAL LAW

through recall, initiative, referendum, and plebiscite.16 (c) No person shall be held to answer for a criminal
Moreover, it contains a more stringent list of Bill of offense without due process of law.
Rights to ensure that the fundamental liberties of the
people would always be protected. It also has a separate (d) The state shall encourage and support research and
Article on Social Justice and Human Rights, under studies on the arts and culture.21
which, the Commission on Human Rights was created!' A: (d) Article XIV, Section 18(2) of the 1987 Constitution.
As to the National Territory, the 1987 Constitution
added a second paragraph to reference and adhere to the Q: Are provisions of the Constitution self-executing or non-
provisions of the 1982 UNCLOS.18 self-executing?

Q: Differentiate self-executing provisions from non-executing A: Unless it is expressly provided that a legislative act is
provisions. necessary to enforce a constitutional mandate, the presumption
now is that all provisions are self-executing. If the constitutional
A: A constitutional provision is self-executing when it is complete provisions are treated as requiring legislation instead of self-
by itself and there is no need for any enabling or supporting executing, the legislature would have the power to ignore and
legislation before a right may be enjoyed or protected. An practically nullify the mandate of the fundamental law. This can
example of this may be found on Article II pertaining to right to be cataclysmic.'
health19 and right to a balanced and healthful ecology. On the
other hand, a non-executing provision provides only a general 1. Declaration of Principles
principle for executive or legislative action. It may also be used
by the courts in the exercise of their power of judicial review. It Q: What is the function of the "Declaration of Principles
does not contain any judicially enforceable constitutional right as and State Policies" in the Constitution?
can be gleaned from most of the provisions in Article II of the A: Article II highlights the basic ideological principles and
Constitution.2° policies that serve as a guide for all the departments of the
Q: Which one of the following is a non-self-executing provision government in the implementation of the Constitution."
of the Constitution:
Q: The separation of Church and State is most clearly
(a) No law shall be passed abridging the freedom of speech. violated when .24

(b) No law shall be made respecting an establishment of (a) the State funds a road project whose effect is to make
religion. a church more accessible to its adherents

16 Republic of the Philippines v. Sandiganbayan, G.R. No. 104768. 21 July 2003,

Puno, J, separate opinion.
17 Id. 21 BAR 2012.
18 Joaquin Bernas, S.J., The 1987 Philippine Constitution: A Comprehensive Reviewer, 22 Manila Prince Hotel v. GSIS, G.R. No. 122156, 03 February 1997.
29 (2011 ed.). 23 Tondo Medical Center Employees Association v. Court of Appeals, G.R. No.
19lmbong v. Ochoa, G.R. No. 204819, 08 April 2014. 167324, 17 July 2007.
2°Tailada v. Angara, G.R. No. 118295, 02 March 1997. 24 BAR 2013.
 8 COMPENDIOUS BAR REVIEWER
T 1987 PHILIPPINE CONSTITUTION 9
ON POLITICAL LAW

(b) the state declares the birthplace of a founder of a disclosure,28 Section 26 only serves as a guideline for executive
religious sect as a national historical site and legislative action.29
(c) the State expropriates church property in order to Q: What is the Precautionary Principle?
construct an expressway that, among others, provides
easy access to the Church's main cathedral A: Precautionary Principle provides that when the link between
the cause, that is the human activity sought to be inhibited, and
(d) the State gives vehicles to bishops to assist them in the effect, that is the damage to the environment, cannot be
church-related charitable projects established with full scientific certainty, the Courts must be
guided by the principle and undertake decisions and or actions to
(e) the State allows prayers in schools for minor children
avoid or diminish the threat."
without securing the prior consent of their parents.
A: (e) In Aglipay v. Ruiz,25 the Supreme Court recognized a. Democracy and Republicanism
instances when there is permissible interplay between the Church
and the State, among which is the optional religious instruction Q: The Constitution declares that the Philippines is a republican
in public schools. state. Republicanism means:
(a) the form of government must be presidential;
Q: Fidel Reyes, the Intergalactic Ambassador of the Planet
Earth, was disqualified by the COMELEC as a candidate for (b) the representatives of the government are elected by
presidency on the basis that Reyes does not have the capacity the people;
to wage a nationwide campaign nor is he supported by a
political party. Reyes assailed this decision as violative of his (c) sovereignty resides in the elected representatives of
right to equal access to opportunities for public service as the government;
enunciated in Article II, Section 26 of the 1987 Constitution. (d) the form of government cannot be changed by the
Is Reyes correct in his assertion? people?'
A: No, Reyes is not correct. Article II, Section 26 of the 1987 A: (c) The sovereignty resides in the elected representatives of
Constitution is not self-executory hence it does not contain any the government."
judicially enforceable right. Just like the other provisions in
Article II with the exception of right to health,26 right to balance
and healthful ecology,27 and right to information and full public

28 CONST., Art. II, Sec. 28.

29 Pamatong v. COMELEC, G.R. No. 161872, 13 April 2004.
25 G.R. No. L-45459, 13 March 1937. 30 West Tower Condominium Corporation v. First Philippine Industrial Corporation,
26 CONST., Art. II, Sec. 15. G.R. No. 194239, 16 June 2015.
27 CONST., Art. II, Sec. 16. 3 1 2012 BAR.
32Naval v. Commission on Elections, G.R. No. 207851, 08 July 2014.
10 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 11
ON POLITICAL LAW

Q: What is the main difference between a pure democracy 1. That government that gets possession and control of, or
as opposed to republicanism? usurps, by force or by the voice of the majority, the
rightful legal governments and maintains itself against
A: In a pure democracy, the people govern themselves directly.
the will of the latter.
As opposed to republicanism, the essence of which is representation
and renovation — the citizens vote for their representatives who 2. That which is established and maintained by military
will then promote the common welfare according to the will of forces who invade and occupy a territory of the enemy in
the people themselves.' the course of war.

Q: What is the nature of the government of the Philippines 3. That which is established as an independent government
as both a republican and democratic state? by the inhabitants of a country who rise in insurrection
against the parent state.38
A: The very nature of our government as democratic and
republican is that the supreme power and authority reside in the Q: What is external self-determination?
body of the people and for whom such authority is exercised. In
the 1987 Constitution, many provisions demonstrate the foregoing A: External self-determination pertains to the right of all people
essential constitutional postulate as it mandates the Government to free themselves from foreign, colonial, or racist domination."
"to serve and protect the people"34 and for public officers to "at It is a recognition that each people have the right to constitute
all times be accountable to the people"35. The Preamble also itself as a nation-state or to integrate into, or federate with, an
explicitly recognizes that the 1987 Constitution came to be as it existing state.'
was "ordained and promulgated" by the "sovereign people"?'
Q: What is internal self-determination?
Q: What are the different classifications of governments A: Internal self-determination encapsulates the freedom of people
according to their legitimacy? to choose any form of political, economic, social, and cultural
A: A government may either be a de jure government or that destiny that they desire.' It is also considered the "right of the
which is established by virtue of the authority of a legitimate people of an existing state to exert control over its `own'
sovereign, or a de facto government which is established in constitution and government.""
defiance of the legitimate sovereign.37

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

A: The following are the different kinds of a defacto government:
38 Id.
39 Right of peoples to self-determination, UN GA Resolution No. A/RES/35/35 A-
B, 14 November 1980.
33Id; Frivaldo v. Commission on Elections (Concurring Opinion, Puno, J.) citing 40 Salvatore Senese, "External and Internal Self-Determination." Social Justice No.
Cruz, Isagani, Philippine Political Law, p. 49 (1991). 1 16 (35), 19 (1989).
34
CONST., Art. II, Sec. 4. 41 UN Human Rights Committee (HRC), CCPR General Comment No. 12: Art. 1
35
CONST., Art. XI, Sec. 1. (Right to Self-determination), The Right to Self-determination of Peoples, 13 March 1984.
36 Macalintal v. COMELEC, G.R. No. 263590, 27 June 2023. 47 Allan Rosas, Internal Self-Determination, Modern Law of Self-Determination,
37 Co Kim Cham v. Eusebio Valdez Tan Keh, G.R. No. L-5, 17 September 1945. 225 (Tomuschat ed., 1993).
12 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 13
ON POLITICAL LAW

Q: Several cases were filed before the Supreme Court assailing against the Philippines, is the Philippines prohibited from
the constitutionality of Republic Act No. 11935 which effectively engaging in such war to defend itself and its citizens?
postponed the Barangay and Sangguniang Kabataan Elections
originally scheduled last December of 2022. The main thrust A: No, the Philippines can engage in war to defend itself. It
of the contentions is that by postponing the scheduled must be noted that under Article 2, Section 2 of the Constitution,
elections, the Congress violated the people's right to suffrage what is prohibited is only aggressive forms of war. The provision
by effectively giving the incument barangay and sangguniang does not proscribe wars that are for the purpose of defending the
kabataan officials authority to remain in office beyond their country and its citizens."
original term, which is tantamount to a legislative
Q: X assails the memorandum issued by Secretary Lorenzana
appointment. On the other hand, the Congress maintains
which permits the interment of Marcos in Libingan ng mga
that the matter is a political question and that the hold-over
Bayani on the basis that it is unconstitutional for being
provision has basis in law and jurisprudence. Is the act of
violative of several provisions as contained in Article II such
Congress in postponing the elections constitutional?
as the the provision relating to the renunciation of war and
A: No, it is not constitutional. At first glance, it is apparent that the guarantee for full respect for human rights, among
the core of the controversy involves clash between two fundamental others. Is X correct in his contention?
interests in a democratic and republican society — the people's
A: No. The provisions relied upon by X as contained in Article
right to suffrage vis-à-vis the plenary power of the Congress.
II are not self-executing. They do not embody judicially enforceable
While the Court recognized the power of the Congress to postpone
constitutional rights. They are only used by the judiciary as aid
the elections as well as the validity of hold-over positions, it still
or as guide in the exercise of its power of judicial review, and by
ruled that Republic Act No. 11935 is unconstitutional for being
the legislature in its enactment of laws.'
failing to satisfy the due process which effectively violated the
people's right to suffrage for the following reasons: (1) the c. Supremacy of Civilian Authority over Military
postponement is not supported by a legitimate government
interest or objective; (2) the means employed are unreasonably Q: In view of the alarming increase in violent crimes in
uncessary as the savings from one branch/constitutional body Metro Manila, President Pepito ordered the deployment of
(COMELEC) cannot be transferred to another branch or body the Philippine Marines to join the Philippine National Police
(executive department); (3) the law unconstitutionally and arbitrarily in visibility patrols around Metro Manila. In compliance
overreaches the exercise of suffrage, liberty and expression.' with the said order, the PNP Chief then issued a Letter of
Instruction which detailed the manner by which the visibility
b. Renunciation of War patrols would be conducted and placing the Task Force
under the leadership of the Chief of Police of Metro Manila.
Q: One of the vital principles in our Constitution is the
This then prompted the Integrated Bar of the Philippines to
principle of renunciation of war. In case the tension in the
West Philippine Sea worsens leading to China declaring war
44 Joaquin Bemas, S.J., The 1987 Philippine Constitution: A Comprehensive Reviewer,
60 (2011 ed.).
45 Ocampo v. Enriquez, G.R. Nos. 225973, 225984, 226097, 226116, 226117,
43
illacalintal v. Commission on Elections, G.R. No. 263590, 27 June 2023. 226120 & 226294, 08 November 2016.
14 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 15
ON POLITICAL LAW

file a case before the Supreme Court, seeking to annul the other persons subject to military law who commit crimes or
Letter of Instruction on the ground that it is unconstitional offenses penalized under the Revised Penal Code other special
as such deployment of the marines is in derogation of Article penal laws, or local government ordinances regardless of
II, Section 3 of the 1987 Constitution which provides that whether or not civilians are co-accused, victims, or offended
"Civilian authority, is, at all times, supreme over the military." parties which may be natural or juridical persons, shall be tried
Is the calling of the Armed Forces (Marines) to assist the by the proper civil court except when the offense, as determined
PNP in joint visibility patrols violative of Article 2, Section 3 before arraignment by the civil court, is service-connected, i.e.,
of the Constitution? Articles 54 to 70, Articles 72 to 92, and Articles 95 to 97 of
Commonwealth Act No. 408, in which case the offense shall be
A: No, the deployment of the Marines does not violate the tried by courts martial.
civilian supremacy clause, nor does it infringe the civilian
character of the police force. In this case, the calling of the 2. State Policies
Marines constitutes permissible use of military assets for civilian
law enforcement. The participation of the Marines in the conduct a. Independent Foreign Policy
of joint visibility patrols is appropriately circumscribed and their
participation is limited by the LOI itself. Moreover, the local Q: Can the BIR deny a tax refund derived as a benefit from
police forces are the ones in charge of the visibility patrols at all a tax treaty for failure to strictly comply with the provisions
times and the Metro Manila Police Chief is the overall leader of of a revenue memorandum issued by them?
the PNP-Philippine Marines joint visibility patrols. In view of
A: No. This is because our Constitution provides for adherence
the foregoing, it cannot be properly argued that military authority
to the general principles of international law as part of the law of
is supreme over civilian authority. Moreover, the deployment of
the land,48 among which is the time-honored international principle
the Marines to assist the PNP does not unmake the civilian
of pacta sunt servanda which demands the performance in good
character of the police force as it merely provides the assistance
faith of treaty obligations on the part of the states that enter into
required in conducting the patrols."
the agreement. More importantly, treaties have the force and
Q: Will the members of the armed forces be tried in civil effect of law in this jurisdiction.49 As such, the BIR must not
courts or courts martial if they commit crimes penalized impose additional requirements that would negate the availment
under the Revised Penal Code? of the reliefs provided for under tax treaties.5°

A: They will be tried in civil courts. Pursuant to Republic Act

No. 7055,47 members of the Armed Forces of the Philippines and

46 Integrated Bar of the Philippines v. Hon. Ronaldo Zamora et.al, G.R. No.
141284, 15 August 2000.
47 Republic Act No. 7055, 20 June 1991. An Act strengthening civilian supremacy
over the military by returning to the civil courts the jurisdiction over certain 48 CONST., Art. II, Sec. 2.
offenses involving members of the Armed Forces of the Philippines, other persons 48 Deutsche Bank v. CIR, G.R. No. 188550, 19 August 2013 citing Luna v. Court of
subject to military law, and the members of the Philippine National Police, repealing Appeals, G.R. No. 100374-75, 27 November 1992.
for the purpose certain presidential decrees. 5° Deutsche Bank v. CIR, G.R. No. 188550, 19 August 2013.
16 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 17
ON POLITICAL LAW

Q: What is a "Soft-Law"? Q: On October 2016, the Republic of the Philippines through

the Department of Finance entered into a Memorandum of
A: It is an expression of non-binding norms, principles, and
Understanding (MOU) with the Chinese government-owned
practices that influence state behavior.'
Bank regarding loan agreements for several infrastructure
Q: Several lawmakers filed a case before the Supreme Court projects. This prompted Congressman X to file a case before
assailing the constitutionality of Enhanced Defense Cooperation the Supreme Court assailing the constitutionality of the
Agreement (EDCA), an executive agreement between the MOU on the ground that it defeats the State's pursuit of
Philippines and the United States which authorizes U.S. independent foreign policy considering that the choices of
military forces to have access to and conduct activities within arbitral tribunal and applicable law under the MOU are
certain "Agreed Locations" in the country. It is claimed that skewed in favor of the Chinese lender. Rule on the contention/s
the EDCA is violative of Article 2, Section 7 which mandates of Congressman X.
that "the State shall pursue an independent foreign policy" A: The contentions of Congressman X are untenable. It must
and that the paramount consideration in relationship with be noted that under Article 1306 of the Civil Code, the parties
other countries should always be national sovereignty, entering a contract have the freedom to contract and are free to
territorial integrity, national interest, and the right to self- stipulate whatever contractual terms they deem convenient so
determination." Is the EDCA constitutional? long as they are not contrary to law, morals, good customs, and
A: Yes, EDCA is constitutional. While it is true that the power public policy. Given that the assailed provisions are contractual
of the president is limited in matters involving foreign military in nature, the parties are free to choose what laws will govern
bases, troops or facilities since such must be covered by treaties their relationship. Moreover, the contention as to the great
concurred by two-thirds of all Members of the Senate, the disadvantage that the Philippines will suffer because of these
President may still enter into an executive agreement involving provisions are speculative at best considering that there has been
the said matters when (a) it is not the instrument that allows the no showing that such arbitration clause has been or is being
presence of foreign military bases, troops, or facilities; or (b) it enforced and that no proof was shown to evidence the alleged
merely aims to implement an existing law or treaty. In the case inequitability of foreign laws which our courts do not take judicial
at bar, the Visiting Forces Agreement (VFA) has already allowed notice of. As such, it cannot be said that the MOU is violative of
the entry of troops in the country, and such was upheld by the the State's pursuit to pursue independent foreign policy.54
Court in another case.52 Furthermore, considering that the EDCA b. Social Justice
is consistent with the content, purpose, and framework of the
Mutual Defense Treaty and VFA, and the same does not sanction Q: A's employment was terminated by ZED Academy after
the operation or maintenance of a military base with full satisfactorily showing the former's embezzlement of company
discretion, the EDCA should be held as constitutional.' funds. The Minister of Labor upheld the termination, but A
appealed, praying for the award of separation pay based on
social justice considerations. Can A validly claim separation
51 Pharmaceutical and Health Care Association v. Duque III, G.R. No. 173034, 09
October 2007.
52 Lim v. Executive Secretary, G.R. No. 151445, 11 April 2002.
53 Saguisag v. BAYAN, G.R. No. 212426, 12 January 2016. 54Colmenares v. Duterte, G.R. No. 245981 & 246594, 09 August 2022.
18 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 19
ON POLITICAL LAW

pay in view of the mandate of the Constitution to promote society and of the protection that should be equally and evenly
social justice in all phases of national development? extended to all groups as a combined force in our social and
economic life, consistent with the fundamental and paramount
A: No, the claim of separation pay is untenable considering that objective of the state of promoting the health, comfort, and quiet
A has been dismissed for causes reflecting on his moral character. of all persons, and of bringing about "the greatest good to the
As a rule, separation pay shall be allowed as a measure of social greatest number."'"
justice only in those instances where the employee is validly
dismissed for causes other than serious misconduct or those c. Sanctity of Family and Vital Role of Youth in Nation-
reflecting on his moral character. A contrary rule would, as the Building
have the effect of rewarding rather than punishing the erring
employee for his offense. The policy of social justice is not Q: Pursuant to a campaign of President Ricardo Dalisay to
intended to countenance wrongdoing simply because it is committed implement a nationwide curfew for minors, several local
by the underprivileged. At best it may mitigate the penalty, but it governments in Metro Manila started imposing penalties for
certainly will not condone the offense. Those who invoke social minors who will be caught outside without their parents
justice may do so only if their hands are clean and their motives during curfew hours. DIM, an association of young adults
blameless and not simply because they happen to be poor." and minors assailed the curfew ordinances on the ground
that they deprive parents of their natural and primary right
Q: What does social justice mean? in rearing the youth without substantive due process. Is DIM
correct in its contention?
A: Social justice was defined in Calalang v. Williams as
"neither communism, nor despotism, nor atomism, nor anarchy," A: No. The State, as parens patriae, has the inherent right and
but the humanization of laws and the equalization of social and duty to aid parents in the moral development of children and
economic forces by the State so that justice in its rational and assume a supporting role for parents to fulfill their parental
objectively secular conception may at least be approximated. obligations. The curfew ordinances are but examples of legal
Social justice means the promotion of the welfare of all the restrictions designed to aid parents in their role of promoting
people, the adoption by the Government of measures calculated their children's well-being. Moreover, these ordinances further
to insure economic stability of all the competent elements of compelling State interests (particularly, the promotion of juvenile
society, through the maintenance of a proper economic and safety and the prevention of juvenile crime) necessarily entail
social equilibrium in the interrelations of the members of the limitations on the primary right of parents to rear their children.'
community, constitutionally, through the adoption of measures
legally justifiable, or extra-constitutionally, through the exercise B. Amendment and Revision (1987 CONST., Art. XVII,
of powers underlying the existence of all governments on the Secs. 1-4; R.A. No. 6735)
time-honored principle of salus populi est suprema lex. Social
justice, therefore, must be founded on the recognition of the Q: Distinguish amendment from revision.
necessity of interdependence among divers and diverse units of a

56
Calalang v. Williams, G.R. No. 47800, 02 December 1940.
55 Osias Academy v. Department of Labor and Employment, G.R. No. 83234, 18 57Samahan ng mga Progresibong Kabataan (SPARK) v. Quezon City, G.R. No.
April 1989. 225442, 08 August 2017.
20 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 21
ON POLITICAL LAW

A: Amendment pertains to a change in the Constitution that adds, is making an informed choice as to the contents of the possible
reduces, or deletes without altering the basic principle involved. amendments that they are authorizing.'
On the other hand, a revision alters a basic principle in the
Constitution such as the separation of powers or the system of Q: What are the methods of amending the Constitution?
check and balances. Moreover, amendment generally affects only Briefly explain each method.62
the specific provision being amended, while revision generally
A: Under our laws, there are three ways as to how amendments
affects several provisions of the constitution.58
to the Constitution may be effected:
Q: Explain the two tests in determining whether a proposed First, the proposal may come from the vote of at least three-
change in the Constitution is considered an amendment or fourths (3/4) of all the members of the Congress, acting as a
a revision. Constituent Assembly.63 Any proposed amendment or revision
A: The two-part test consists of the qualitative test and the under this shall only be valid when ratified by a majority of the
quantitative test. The qualitative test focuses on the possible votes cast in a plebiscite which shall be held not earlier than 60
implications of the proposed change and its far-reaching effects days or later than 90 days after the approval of the amendment
on the nature of our basic governmental plan. On the other hand, the or revision.64
quantitative test examines the number of provisions affected.' Second, a proposed amended may also come from the
Constitutional Convention which may be called into existence
Q: Explain the doctrine of proper submissions.
either by a vote of at least two-thirds (2/3) of all its members or
A: The doctrine of proper submissions mandates that all in case of failure to obtain the same and by a majority vote of all
proposed amendments to the Constitution must be presented to its members, submit to the electorate the question of calling a
the people for ratification or rejection at the same time and not Constitutional Convention.'
on a piece-meal manner. This is to ensure that voters have ample
Lastly, amendments to the Constitution may be directly proposed
basis for intelligent appraisal of the nature of the amendment per
by the people through initiative upon petition of at least 12% of
se as well as its relation to the other parts of the Constitution
the total number of registered voters, and at least 3% of the
with which it has to form a harmonious whole.'
registered voters in every legislative district must be represented.66
Q: What are the two essential requisites of a valid proposal Any amendment herein shall be valid when ratified by a majority
from the people to amend the Constitution? of the votes cast in a plebiscite which shall be held not earlier
than sixty (60) days nor later than ninety (90) days after the
A: First, the people themselves must author and personally sign
the entire proposal, and second, the entire proposal must be
embodied in the petition. This is to ensure that the persons voting

61 Lambinov. COMELEC, G.R. 174153, 25 October 2006.

62 BAR 2017.
63 CONST., Art. XVII, Sec. I.
58Lambino v. COMELEC, G.R. No. 174153, 25 October 2006. 64 CONST., Art. XVII, Sec. 4.
59
Id.
65
CONST., Art. XVII, Sec. 3.
60 Tolentino v. COMELEC, G.R. No. L-34150, 16 October 1971.
66
CONST., Art. XVII, Sec. 2.
22 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 23
ON POLITICAL LAW

certification by the Commission on Elections of the sufficiency 3. Initiative on local legislation - It pertains to a petition
of the petition.67 proposing to enact a regional, provincial, city, municipal
or barangay law, resolution, or ordinance.72
Q: May a Constitutional revision be effected through a
People's Initiative? Q: The Constitutional provision on initiative and referendum
is not self-executory. This is so because it requires:73
A: No. The Constitution provides for only two ways as to how
revisions may be effected: either through the Congress, upon a (a) an implementing resolution from the COMELEC.
vote of 3/4 of all its Members or through a Constitutional
Commission.68 People's Initiative may only be used to propose (b) an implementing resolution from the Supreme Court
amendments to the Constitution.' (c) an implementing legislation
Q: Distinguish constituent power from legislative power. (d) an implementing resolution from party-list representative
A: Constituent power refers to the power to formulate, propose A: (c) Article VI, Section 32 of the 1987 Constitution provides
and to ratify amendments or revisions to the Constitution.7° On that the Congress shall, as early as possible, provide for a system
the other hand, legislative power pertains to the power to pass, of initiative and referendum.
amend, or repeal ordinary laws and statutes which may be done
by the Congress or by the people, through initiative and Q: What are the requirements to exercise the power of
referendum.71 initiative or referendum?

Q: Enumerate and briefly explain the systems of initiative A: To exercise the power of initiative or referendum, at least ten
recognized under our laws. per centum (10%) of the total number of the registered voters, of
which every legislative district is represented by at least three per
A: Republic Act No. 6735, also known as The Initative and centum (3%) of the registered voters thereof, shall sign a petition
Referendum Act, recognizes three (3) systems of initiatives, to wit: for the purpose and register the same with the Commission.74
1. Initiative on the Constitution - It refers to a petition Q: An initiative to amend the Constitution was held in 2020.
proposing amendments to the Constitution. Three years later, another group of individuals want to
2. Initiative on the statutes - It pertains to petition proposing conduct another initiative to amend the Constitution. Is this
to enact national legislation. allowed under our present laws?
A: No. Article XVII, Section 2 of the Constitution prohibits an
amendment through initiative within five (5) years following the
ratification of the Constitution nor more than once every five (5)
years thereafter.
67 CONST., Art. XVII, Sec. 4.
68 CONST., Art. XVII, Secs. 1.
69 CONST., Art. XVII, Secs. 2. 72 R.A. No. 6735, hereinafter, "The Initiative and Referendum Act," Sec. 3(a).
70 Sanidad v. COMELEC, G.R. No. L-44640, 12 October 1976. 73 BAR2012.
7'
Garcia v. COMELEC, G.R. No. 111230, 30 September 1994. 74 The Initiative and Referendum Act, Sec. 5(a).
24 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 25
ON POLITICAL LAW

Q: Jose Cruz and twenty others filed a petition with the Q: What is a referendum?
COMELEC to hold a plebiscite on their petition for initiative
to amend the Constitution by shifting to a unicameral A: A referendum pertains to the power of the electorate to approve
parliamentary form of government. Assuming that the reject a legislation through an election called for the purpose.80
petition has been signed by the required number of registered Q: What are the two classes of referendum? Briefly explain
voters, will it prosper?75 each of them.
(a) No, only Congress can exercise the power to amend A: The following are the classes of referendum:
the Constitution.
1. Referendum on statutes — It pertains to a petition to
(b) Yes, the people can substantially amend the Constitution approve or reject an act or law, or part thereof, as passed
by direct action. by Congress.
(c) Yes, provided Congress concurs in the amendment. 2. Referendum on local law — It pertains to a petition to
(d) No, since they seek, not an amendment, but a revision. approve or reject a law, resolution or ordinance enacted
by regional assemblies and local legislative bodies.'
A: (d)76 The people cannot propose revisions and may only
propose amendments.' Q: TRUE OR FALSE. All laws and statutes may be subject
to an initiative or referendum.
Q: Differentiate initiative from referendum.
A: False. Section 10 of RA 6735 provides that the following
A: Initiative pertains to the power of the people to propose cannot be the subject of an initiative or referendum petition:
amendments to the Constitution or to propose and enact legislations
through an election called for the purpose. On the other hand, 1. A petition embracing more than one (1) subject;
referendum pertains to power of the electorate to approve or 2. Statutes involving emergency measures, the enactment
reject a legislation through an election called for the purpose.78 of which are specifically vested in Congress by the
Constitution, cannot be subject to referendum until ninety
Q: What is indirect initiative?
(90) days after its effectivity.'
A: "Indirect initiative" is the exercise of initiative by the people
through a proposition sent to Congress or the local legislative Q: What will happen if the local legislative body adopts in
body for action.79 toto the proposition presented at any time before the local
initiative is held?

75 BAR 2011.
76 CONST., Art. XVII, Sec. 1 (2).
77 Lambino v. COMELEC, G.R. No. 174153, 25 October 2006. 8° Id., Sec. 3(c).
81 Id.
78 The Initiative and Referendum Act, Secs. 3(a) and 3(c).
79 Id., Sec. 3(b). 87 Id., Sec. 10.
26 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 27
ON POLITICAL LAW

A: The initiative shall be deemed cancelled. However, those represented by at least three per centum (3%) of the registered
against such action may, if they so desire, apply for initiative in voters therein.85
the manner provided under RA 6735.83
3. Law, ordinance, resolution by the autonomous region,
Q: May the Court declare as null and void any proposition province or city comprised of a single legislative district
approved by local initiative or referendum?
A: A referendum or initiative affecting a law, resolution or
A: Yes. Section 18 of RA 6735 provides that nothing in the said ordinance passed by the legislative assembly of an autonomous
law will preclude the courts from declaring as null and void any region, province or city with a single legislative district is deemed
proposition approved via local initiative or referendum based on validly initiated if the petition thereof is signed by at least ten per
following grounds: (1) that the proposition is violative of the centum (10%) of the registered voters in the province or city, of
Constitution or (2) that the local legislative body has no legal which at least each municipality in a province or each barangay
capacity to enact the said measures. in a city should be represented by at least three per centum (3%)
of the registered voters therein."
Q: State the requirements to validly initiate the referendum
or initiative of: 4. Ordinance passed in municipality

1. Constitution A: A referendum of initiative on an ordinance passed in a

municipality shall be deemed validly initiated if the petition
A: A petition for an initiative on the 1987 Constitution must therefor is signed by at least ten per centum (10%) of the
have at least twelve per centum (12%) of the total number of registered voters in the municipality, of which every barangay is
registered voters as signatories, of which every legislative represented by at least three per centum (3%) of the registered
district must be represented by at least three per centum (3%) of voters therein.87
the registered voters therein."
5. Barangay resolution or ordinance
2. Law, ordinance, resolution by the autonomous region,
province or city comprised of multiple legislative districts A: A referendum or initiative on a barangay resolution or
ordinance is deemed validly initiated if signed by at least ten per
A: A referendum or initiative affecting a law, resolution or centum (10%) of the registered voters in said barangay."
ordinance passed by the legislative assembly of an autonomous
region, province or city with multiple legislative districts is Q: Indicate the required number of votes needed to file a
deemed validly initiated if the petition thereof is signed by at petition proposing the adoption, enactment, repeal, or
least ten per centum (10%) of the registered voters in the amendment, of any law, ordinance, or resolution in the local
province or city, of which every legislative district must be government level:

85 Id., Sec. 5(d).

86 Id., Sec. 5(d).
83
Id., Sec. 15. 87 Id., Sec. 5(e).

84 Id., Sec. 5(b). 88 Id., Sec. 5(f).

28 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 29
ON POLITICAL LAW

A: The amount of signatures needed for local initiative for the c) It abandons our claim over Sabah.
different local government units are as follows:
d) It contravenes the Constitution by converting internal
Local waters into archipelagic waters which subjects the
Signatures needed
Government same to the right of innocent and sea lanes passage
under UNCLOS.
Autonomous Not less than 2,000 registered
Regions voters in the region. Rule on the contentions."
Provinces and Not less than 1,000 registered voters A: The first contention is without merit. R.A. No. 9522 was
Cities passed for the country to be compliant with the terms of the
UNCLOS. The UNCLOS has nothing to do with any acquisition
Municipalities Not less than 100 registered voters or loss of territory but rather, it only delimits with precision the
Not less than 50 registered voters89 extent of the maritime zones and continental shelves of the
Barangays
country. It must be noted that States acquire (or conversely, lose)
territory only through occupation, accretion, cession, and prescription,
Q: Can the power of local initiative be exercised twice a year? not by executing multilateral treaties on the regulations of sea-
use rights or enacting statutes to comply with the treaty's terms
A: No, the power of local initiative may only be exercised once
to delimit maritime zones and continental shelves.
a year.9°
The second contention is also unfounded. A perusal of Section 2
C. National Territory (1987 CONST., Art. I; UNCLOS, of R.A. No. 9522 will evince the Philippines' continued claim of
Arts. 1, 3-8, 33, 46-48, 50 and 55-58) sovereignty and jurisdiction over the KIG and Scarborough
Shoal. The decision not to enclose the MG and Scarborough
Q: Congressman Billy questioned the constitutionality of
inside the baselines drawn under R.A. No. 9522 was made to
R.A. No. 9522 or the Baseline Law on the following grounds:
prevent breach of the UNCLOS provisions.
a) It reduces the Philippine maritime territory and
Anent the third contention, R.A. No. 9522 did not abandon our
logically the reach of the Philippine state's sovereign
claim over Sabah. Section 2 of the said law clearly state that the
power.
baselines are "without prejudice to the delineation of baselines of
b) It effectively surrenders the Philippines' claim over the territorial sea around the territory of Sabah, situated in North
the Kalayaan Island Group (KEG) and the Scarborough Borneo, over which the Republic of the Philippines has acquired
Shoal by classifying them as Regime of Islands and dominion and sovereignty."
not enclosing them inside the baselines drawn by
Lastly, R.A. No. 9522 is not in contravention of the Constitution.
R.A. No. 9522.
It must be noted that regardless of whether it is called as Philippine
"internal waters" under Article I of the 1987 Constitution or as

89 Id, Section 13.

91
9° Id, Section 15. BAR 2013, 2015, 2016.
30 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 31
ON POLITICAL LAW

"archipelagic waters" under UNCLOS, the Philippines still four 24 nautical miles from the baselines from which the
exercises sovereignty over the body of water lying landward of breadth of the territorial sea is measured.97
the baselines, including the air space over it and the submarine
3. Exclusive Economic Zone. The EEZ is an area beyond
areas underneath. The fact of sovereignty, however, does not
and adjacent to the territorial sea98 which shall not extend
preclude the operation of municipal and international law norms
beyond two hundred (200) nautical miles from the baselines
subjecting the territorial sea or archipelagic waters to necessary,
if not marginal, burdens in the interest of maintaining unimpeded, from which the breadth of the territorial sea is measured."
expeditious international navigation, consistent with the international 4. Continental Shelf. Article 76 of the UNCLOS provides
law principle of freedom of navigation.' that the continental shelf of a coastal State comprises the
seabed and subsoil of the submarine areas that extend
Q: Describe the following maritime regimes under UNCLOS:
beyond its territorial sea throughout the natural prolongation
1. Territorial Sea of its land territory to the outer edge of the continental
margin, or to a distance of two hundred 200 nautical
2. Contiguous Zone miles from the baselines from which the breadth of the
territorial sea is measured where the outer edge of the
3. Exclusive Economic Zone
continental margin does not extend up to that distance.
4. Continental Shelf.93 Illustration: 100
A: The following maritime regimes are described under the
UNCLOS as follows: MARITIME ZONES
1. Territorial Sea. Every State has the right to establish the Innocent Pa.ge
Freedom of Navigation/Overflight
contiguous
breadth of its territorial sea up to a limit not exceeding Territorial Sea
Baseline
Zane

twelve (12) nautical miles measured from the baselines." I AA 24AI MAI Jaaaa
EEZ The lIgh Seas
The outer limit of the territorial sea is the line every Tana
Use:

point of which is at a distance from the nearest point of

the baseline equal to the breadth of the territorial sea.95
2. Contiguous Zone. It is a zone that is contiguous to the
territorial sea96 which may not extend beyond twenty-
No National Rights

92 Magallona v. Ermita, G.R. No. 187167, 16 August 2011. 97 Id., Art. 33 (2).
93 BAR 2015. 98 Id., Art. 55.
94 UNCLOS, Art. 3. 99 Id., Art. 57.

95 Id., Art. 4. 10° Hon. Justice Antonio T. Carpio, Protecting the Nation's Marine Wealth in the
96 Id., Art. 33 (1). West Philippine Sea, Philippine Women's Judges Association, 06 March 2014.
32 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 33
ON POLITICAL LAW

Q: Discuss the extent of sovereignty/rights of the coastal Q: State if the following statement is true or false then
state in the different maritime regimes: briefly provide support for your answer.
1. Territorial Sea — The State's sovereignty over these 1. China's consistent non-participation deprives the
waters, including the airspace above and seabed under, is Tribunal of jurisdiction necessary to continue with
the same extent to that of the sovereignty over land.1°' the arbitration.
However, it is subject to the right of innocent passage by
other states.'" A: False. The Tribunal held that China's non-participation will
not prevent the arbitration from continuing. As a state-party to
2. Contiguous Zone103 — The State has the right to enforce the Convention, China is still bound by the decision rendered by
and prevent infringement of its customs, fiscal, immigration the Tribunal.108
or sanitary laws and regulations within its territory. '04
2. China's non-participation empowers the Tribunal to
3. Exclusive Economic Zone105 — The State has the following enter a default judgment in favor of the Philippines.
rights: a) sovereign rights for the purpose of exploration,
exploitation and management of living, non-living, and A: False. China's non-participation imposes a special responsibility
natural resources; b) other activities for economic on the Tribunal not to simply accept the claims of the Philippines
exploitation and exploration of the zone, such as fishing, or enter a default judgment. The Tribunal is mandated to satisfy
mining, and production of energy from water, currents, itself that it has jurisdiction over the dispute and that the claim is
and winds; c) jurisdiction with regard to the establishment well founded both in law and in fact.109
and use of artificial islands, installations and structures, 3. The dispute between Philippines and China is about
marine scientific research and protection of the marine territorial sovereignty and therefore not a matter
environment to the exclusion of other states.' concerning the Convention.
4. Continental Shelf — The State has the right to exploit A: False. The Tribunal ruled that while indeed there is a dispute
and explore natural resources, living organisms, mineral between the Parties concerning the sovereignty of islands in the
and other non-living resources, found in the seabed and South China Sea, the matters submitted to arbitration by the
subsoi1.107 Philippines do not concern sovereignty. Instead, the Philippines'
submission reflected a dispute concerning the Convention like
the overlap of the Conventionand China's historic rights and the
aggravation of dispute brought by the large-scale reclamation
of China.' 10

101 UNCLOS, Art. 2.

1°2 Id., Art. 17.
103 BAR 2019.
104 UNCLOS, Art. 33 (1).
I" In the Matter of the South China Sea Arbitration (PHL v. PRC), Award, PCA
1°5 BAR 2000, 2005, 2019. Case No. 2013-19, 12 July 2016.
106
UNCLOS, Art. 56. I" id.
j°1 Id.„ Art. 77. "°
34 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 35
ON POLITICAL LAW

4. China's claim to historic rights is incompatible with Maritime Zones Generated

the provisions of the Convention. Description Exclusive Continental
Feature Territorial
A: True. The Tribunal held that China's claim to historic rights Economic Shelf
Sea Zone
to resources was incompatible with the text of the Convention
which gives States only a limited right of access to fisheries in A feature that
the exclusive economic zone. Moreover, since China is a state- is fully
Submerged submerged, No No No
party to the UNCLOS, whatever historic rights China might have Feature
that were incompatible with the system of maritime zone as even at low
provided in the UNCLOS were extinguished by the entry into tide.113
force of the Convention.111 Naturally
formed area of
5. China violated its obligations under the Convention land,
when it continued the large-scale land reclamation surrounded by
and construction of artificial islands despite the Low-tide and above Noll' No No
commencement of the dispute. Elevation
water at low
tide but
A: True. Under the Convention, the parties engaged in a dispute submerged at
settlement procedure have the duty not to aggravateor extent the high tide.' 14
dispute during the pendency of the settlement process. China's
act of building a large artificial island on Mischief Reef, causing A feature,
permanent and irreparable harm to the coral reef ecosystem, and surrounded by
High-tide water, that is
permanently destroying the evidence of the natural condition of Feature
above water at
the features in question aggravated the on-going dispute which is
high tide.' 16
clearly a violation of its obligation under the Convention."'
No capacity to
Q: What maritime zones are generated by the different Kinds of sustain human
features present in the West Philippine Sea? High-tide Rock habitation or Yes No' No119
Features: economic life
A: The maritime zones generated by the different features
of its own. ' 17
present in the West Philippine Sea are as follows:

"31d.
"4 Id., Art. 13 (1).
I I) UNCLOS, Art. 13 (2) — Where a low-tide elevation is wholly situated at a distance
exceeding the breadth of the territorial sea from the mainland or an island, it has no
territorial sea of its own.
1 16 Id., Art. 121 (1).
tot Id.
" 21d. "8 Id., Art. 121 (3).
36 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 37
ON POLITICAL LAW

Has the not constitute dumping, provided that such placement is not
capacity to contrary to the aims of the UNCLOS. I22
sustain human
Island Yes Yes Yes
habitation or Q: TRUE OR FALSE. "Area" as defined under Art. 1 of the
economic life UNCLOS pertains to the seabed, ocean floor and subsoil
of its own.12° thereof that are within the limits of national jurisdiction.
A: False. Article 1(1) of the UNCLOS defines an area as the
United Nations Convention on the Law of the Sea
seabed, ocean floor and subsoil that is beyond the limit of any
Q: TRUE OR FALSE. "Dumping" as defined under Art. 1 national jurisdiction."
of the United Nations Convention on the Law of the Sea
Territorial Sea
(UNCLOS) does not include "deliberate disposal of aircraft
at sea." Q: What is the breadth of the territorial sea?
A: False. Dumping, as defined under Article 1 (5) (a) of the A: Every State has the right to determine the breadth of its
UNCLOS contemplates two scenarios, to wit: (1) any deliberate territorial sea up to a limit not exceeding twelve (12) nautical
disposal of wastes or other matter from vessels, aircraft, platforms, miles, measured from its baselines.123 In case of an archipelagic
or other man-made structures at sea; and (2) any deliberate State, the breadth of its territorial sea shall be measured from its
disposal of vessels, aircraft, platforms, or other man-made 24
archipelagic baselines in accordance with Art. 47 of UNCLOS.'
structures at sea."12'
Q: What is the outer limit of the territorial sea?
Q: Is the placement of a matter for a purpose other than the
mere disposal thereof constitute "dumping" under the UNCLOS? A: The outer limit of the territorial sea is the line every point of
which is at a distance from the nearest point of the baseline equal
A: No, dumping only pertains to the deliberate disposal of to the breadth of the territorial sea. I25
either wastes or other matters from vessels, aircraft, platforms or
other man-made structure at sea or deliberate disposal of vessels, Q: Discuss the extent of a state's sovereignty over its
aircraft, platforms, or other man-made structures at sea. Disposal territorial sea.
of wastes or other matter incidental to or derived from the
normal operations of the aforementioned or placement of matter A: The sovereignty of the coastal state over its territorial sea
for a purpose other than mere disposal, such as this case, does and the airspace above it as well as the seabed under is the same

122 Id., Art. 1(5)(b).

123 Id., Art. 3.
120 In the Matter of the South China Sea Arbitration (PHL v. PRC), Award, PCA 124 Id., Art. 48.
Case No. 2013-19, 12 July 2016. 125 Id., Art.4.
121 UNCLOS, Art. 1(5)(a).
38 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 39
ON POLITICAL LAW

as its sovereignty over its land territory.126 It is, however, subject Q: Can the drawing of straight baselines depart at any
to the right of innocent passage by other states.127 appreciable extent from the general direction of the coast?

Q: What are the methods in determining the territorial sea? A: No, the UNCLOS clearly provides that the drawing of
straight baselines must NOT depart to any appreciable extent
A: The methods in determining the territorial sea are as follows: from the general direction of the coast. Moreover, the sea areas
lying within the lines must be sufficiently closely linked to the
1. Normal Baseline Method - In normal baseline method,
land domain to be subject to the regime of internal waters.131
the territorial sea is simply drawn from the low-water
line along the coast as marked on large-scale charts Q: Can straight baselines be drawn to and from low-tide
officially recognized by the coastal State, following its elevations?
sinuosities and curvatures but excluding the internal
waters in bay and gulfs;128 or A: Yes. As a general rule, the UNCLOS provides that straight
baselines shall not be drawn to and from low tide elevations.
2. Straight Baseline Method - In straight baseline method, However, this rule admits of certain exceptions, which include
straight lines are made to join appropriate points in drawing the presence of lighthouses or similar installations which must be
the baseline from which the breadth of the territorial sea permanently above sea level built on them as well as in certain
is measured. This method may be employed in localities instances where such drawing of baselines to and from such
where the coastline is deeply indented and cut into or 132
elevations has received general international recognition.
there is a fringe of islands along the coast in the
immediate vicinity.' Q: Can a state apply the system of straight baseline in order
to cut off the territorial sea of another state?
Q: What is the method to determine the breadth of the
territorial sea for islands situated on atolls or those islands A: No, the UNCLOS prohibits states from using the straight
that have fringing reefs? baseline method in such a way that it will result to the cutting off
the territorial sea of another state from the high seas or of an
A: To measure the territorial sea of islands situated on atolls or exclusive economic zone.133
of islands that have fringing reefs, the baseline is simply drawn
from the seaward low-water line of the reef, as shown by the Q: Can submarine wires or cables used for communications
appropriate symbol on charts that is officially recognized by the found on the seabed within the territorial sea of the
Coastal State.13° Philippines be taxed by a local government unit of a coastal town?
A: Yes, since the said portion falls within Philippine territory
and falls within the jurisdiction of the local taxing authorities.
Considering that a portion of the submarine wires or cables are
126 Id., Art. 2.
127 Id., Art. 17.
128 Id., Art. 5.
129 Id., Art. 7; Carlo L. Cruz and Isagani A. Cruz, International Law Reviewer, 122- 131 Id., Art. 7 (3).
123 (2020 ed.). 132 Id., Art. 7 (4).
13° UNCLOS, Art. 6. 133 Id., Art. 7 (6).
 40 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 41
ON POLITICAL LAW

found within the surrounding sea of a coastal town, which would Q: When is passage prejudicial to peace, good order, or
then form part of the country's territorial sea (to the extent of 12 security of the costal state?
nautical miles outward from the nearest baseline) under UNCLOS,
the country has sovereignty over said portion, including over the A: The passage is prejudicial when the ship engages in the
seabed and subsoil. Nonetheless, even if such portion does not lie following acts in the territorial sea:
in the 12-nautical-mile vicinity of the territorial sea but further 1. any threat or use of force against the sovereignty,
inward, it has been held that the Philippines exercises sovereignty territorial integrity, or political independence of the
over the body of water lying landward of its baselines, whether it coastal State, or in any other manner in violation of the
be referred to as internal waters or as archipelagic waters.'3a principles of international law embodied in the Charter
of the United Nations;
Q: Define "passage" for purposes of the right of innocent
passage. 2. any exercise or practice with weapons of any kind;
A: Passage means navigation through the territorial sea for the 3. any act aimed at collecting information to the prejudice
purpose of: of the defense or security of the coastal State;
1. traversing that sea without entering internal waters or 4. any act of propaganda aimed at affecting the defense or
calling at a roadstead or port facility outside internal security of the coastal State;
waters; or
5. the launching, landing, or taking on board of any aircraft;
2. proceeding to or from internal waters or a call at such
roadstead or port facility."' 6. the launching, landing, or taking on board of any
military device;
Passage shall be continuous and expeditious. However, passage
includes stopping and anchoring, but only in so far as the same 7. the loading or unloading of any commodity, currency, or
are incidental to ordinary navigation or are rendered necessary person contrary to the customs, fiscal, immigration or
by force majeure or distress or for the purpose of rendering sanitary laws and regulations of the coastal State;
assistance to persons, ships or aircraft in danger or distress.' 36
8. any act of willful and serious pollution contrary to this
Q: When is passage innocent? Convention;

A: Passage is innocent so long as it is not prejudicial to the 9. any fishing activities;

peace, good order, or security of the coastal State.13' 10. the carrying out of research or survey activities;
11. any act aimed at interfering with any systems of
communication or any other facilities or installations of
134 Capitol Wireless Inc. v. Provincial Treasurer of Batangas, G.R. No. 180110, 30 the coastal State; and
May 2016.
135 UNCLOS, Art. 18(1).
'36 1d., Art. 18(2).
137 Id., Art. 19(1).
42 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 43
ON POLITICAL LAW

12. any other activity not having a direct bearing on passage138 Right of Innocent Right of Transit
Passage Passage
Q: What are the rights of a coastal state relating to innocent
passage through the territorial sea? Applicability Territorial Sea Strait

A: Article 25 of the UNCLOS provides the following rights for Scope Navigation only Navigation and
the protection of the coastal state: overflight

1. That the coastal State may take the necessary steps in its Suspension May not be May be unilaterally
territorial sea to prevent passage which is not innocent; unilaterally suspended.
suspended.
2. In the case of ship proceeding to internal waters or a call
at a port facility outside internal waters, the coastal state
also has the right to take the necessary steps to prevent Contiguous Zone
any breach of the conditions to which admission of those
ships to internal waters or such a call is subject; and Q: Define the contiguous zone?"°

3. The coastal State may, without discrimination in form or A: It is the zone contiguous to the territorial sea of a coastal
in fact among foreign ships, suspend temporarily in State which extends up to 24 nautical miles from the same baseline
specified areas of its territorial sea the innocent passage that is used in measuring the breadth of the territorial sea. In this
of foreign ships if such suspension is essential for the zone, the coastal State may exercise the control necessary to:
protection of its security, including weapons exercises. 1. Prevent infringement of its customs, fiscal, immigration,
or sanitary laws and regulations within its territory or
Q: What is the right of Transit Passage?
territorial sea; and
A: The exercise of the freedom of navigation and overflight
2. Punish infringement of the above laws and regulations
solely for the purpose of continuous and expeditious transit of
committed within its territory or territorial sea.141
the strait between one part of the high seas or an exclusive
economic zone and another part of the high seas or an exclusive Q: What are the rights that can be exercised over the
economic zone.139 contiguous zone?'42
Q: Distinguish the Right of Innocent Passage from Right of A: Within the contiguous zone, the coastal state may exercise
Transit Passage. the control necessary to:
A: These can be distinguished as follows:

140
BAR 2012, 2015.
138
Id., Art. 19(2). 14IUNCLOS, Art. 33.
139 Id., Arts. 37, 38(2). 142 BAR 2019.
44 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 45
ON POLITICAL LAW

1. prevent infringement of its customs, fiscal, immigration any archipelago may have a maximum length of 125 nautical
or sanitary laws and regulations within its territory or miles. The drawing of such baselines shall also not depart to any
territorial sea; and appreciable extent from the general configuration of the archipelago.
2. punish infringement of the above laws and regulations Internal Waters
committed within its territory or territorial sea.'43
Q: State the applicable rules in the drawing of closing lines
Archipelagic State for the delimitation of the internal waters of archipelagic
states within its archipelagic waters.
Q: What is an archipelago?144
A: Article 50 of the UNCLOS provides that following rules should
A: An archipelago refers to a group of islands, including parts
apply in the delimitation of internal waters of archipelagic states:
of islands, interconnecting waters and other natural features
which are so closely interrelated that such islands, waters, and 1. If a river flows directly into the sea, the baseline shall be
other natural features form an intrinsic geographical, economic a straight line across the mouth of the river between
and political entity, or which historically have been regarded points on the low-water line of its banks.14S
as such.'"
2. In case of bays, the coasts of which belongs to a single
Q: What are archipelagic states? state,149 if the distance between the low-water marks of
the natural entrance points of a bay does not exceed 24
A: Archipelagic states are States constituted wholly by one or nautical miles, a closing line may be drawn between
more archipelagos and may include other islands.' 46 these two low-water marks, and the waters enclosed
thereby shall be considered as internal waters. However,
Q: Explain how the archipelagic doctrine is implemented
if the entrance points of a bay exceed 24 nautical miles,
through the straight baseline method.147
a straight baseline of 24 nautical miles shall be drawn
A: Pursuant to Art. 47 of UNCLOS, the national territory of an within the bay in such a manner as to enclose the
archipelagic state is implemented by joining the outermost points maximum area of water that is possible with a line of
of the outermost islands and the drying reefs of the archipelago, that length.15°
provided that within such baselines are included the main islands
3. The outermost permanent harbour works which form an
and an area in which the ratio of the water to the area of the land,
integral part of the harbour system are considered part of
including atolls, is between 1 to 1 and 9 to 1. The length of such
the coast. However, offshore installations and artificial
baselines shall generally not exceed 100 nautical miles, while up
islands are not considered as permanent harbour works.151
to three percent (3%) of the total number of baselines enclosing

143 UNCLOS, Art. 33.

144 BAR 2009. 148 UNCLOS, Art. 9.
145 UNCLOS, Article 46(b). I49 Id., Art. 10(1).
146 UNCLOS, Article 46(a). 15° Id., Art. 10 (4) and (5),
147 BAR 2016. 151 /d., Art. 11.
46 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 47
ON POLITICAL LAW

Exclusive Economic Zone Q: What are the rules concerning the construction of artificial
islands, installations, and other structures in the EEZ?
Q: Define the exclusive economic zone (EEZ)? 152
A: Article 60(1) of the UNCLOS provides that the coastal State
A: It is an area beyond and adjacent to the territorial sea, over shall have the exclusive right to construct and to authorize and
which a State has special rights over the exploration and regulate the construction, operation and use of artificial islands,
utilization of marine resources. It shall not extend beyond 200 installations, and other structures within its EEZ. The coastal
nautical miles from the baselines from which the breadth of the State shall also have exclusive jurisdiction over such artificial
territorial sea is measured. In case of archipelagic states, its islands, installations, and structures, including jurisdiction with
breadth shall be measured from the archipelagic baseline.153 In regard to customs, fiscal, health, safety and immigration laws
the Philippine context, the same definition is provided under and regulations.156
Presidential Decree (PD) No. 1599.
Note however, these artificial islands do not possess the status of
Q: What are the rights enjoyed by a coastal state in its EEZ?154 islands and as such, they have no territorial sea of their own, and
their presence does not affect the delimitation of the territorial
A: The following are the rights enjoyed by a coastal state with sea, the exclusive economic zone, or the continental shelf.157
respect to its exclusive economic zone:
Q: In the desire to improve the fishing methods of the
1. Sovereign rights for the purpose of exploring and
fishermen, the Bureau of Fisheries, with the approval of the
exploiting, conserving, and managing the natural resources,
President entered into a memorandum of agreement to allow
and with regard to other activities for the economic
Thai fishermen to fish within 200 miles from the Philippine
exploitation and exploration of the zone;
Sea coasts on the condition that Filipino fishermen be allowed
2. Jurisdiction with regard to: to use Thai fishing equipment and vessels and to learn modern
technology in fishing and canning. Is the agreement valid?'"
a. the establishment and use of artificial islands, offshore
terminals, installations, and structures; A: No, the President cannot authorize the Bureau of Fisheries to
enter in such agreement allowing foreign fishermen to fish
b. prevention and control of pollution and scientific within the exclusive economic zone of the Philippines because
research; and the area of 200 miles from the coasts is the country's Exclusive
c. the preservation of the marine environment. Economic Zone, where Filipinos have the exclusive right to the
exploitation of marine resources and other economic activities
3. Such other rights as are recognized by international law such as fishing.
or state practice.'55

152 BAR 2013 and 2015.

153 UNCLOS, Arts. 55, 57. 156 Id., Art. 60(2).
154 BAR 2019. 157 Id., Art. 60(8).
166 UNCLOS, Art. 56(1)(a). 158 BAR 1994.
48 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 49
ON POLITICAL LAW

Continental Shelf extend farther than the continental margin but within the 200
nautical mile limit.163
Q: What is a continental shelf?159
Corollary, if the continental margin extends beyond 200 nautical
A: Continental shelf comprises the seabed and subsoil of the miles from the baselines, the coastal state shall on one hand
submarine areas that extend beyond its territorial sea throughout establish the outer edge of the margin, and on the other hand
the natural prolongation of its land territory (1) to the outer edge shall establish the outer limit of the continental shelf provided it
of the continental margin, or (2) to a distance of two hundred does not exceed 350 nautical miles from the baselines of the
(200) nautical miles from the baselines from which the breadth 64
territorial sea, or 100 nautical miles from the 2500-meter isobath.'
of the territorial sea is measured where the outer edge of the This is the concept of extended continental shelf.
continental margin does not extend up to that distance.160
Q: What rights does the coastal state exercise over the
Q: What is a continental margin? continental shelf?
A: It comprises the submerged prolongation of the land mass of A: The rights of a coastal state over its continental margin are:
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 1. The coastal state has sovereign rights over the continental
floor with its oceanic ridges or the subsoil thereof.161 shelf for the purpose of exploring and exploiting its
natural resources. However, it does not form part of the
Q: What is the extended continental shelf? territory of the coastal state. The natural resources referred
to in this part consist of the mineral and other non-living
A: The coastal state is allowed to claim a continental shelf of up resources of the seabed and subsoil together with living
to 200 nautical miles from the baselines; however, if the outer organisms belonging to sedentary species, that is to say,
margin extends beyond 200 nautical miles from the baselines, organisms which, at the harvestable stage, either are
then the outer limit of the continental shelf shall not exceed 350 immobile on or under the seabed or are unable to move
nautical miles from the baselines.16z except in constant physical contact with the seabed or
Q: Explain the relationship between continental shelf and the subsoil;
continental margin. 2. These rights are exclusive in the sense that if the coastal
A: If the continental margin does not extend beyond the 200 State does not explore the continental shelf or exploit its
nautical miles from the baselines, the continental shelf may natural resources, no one may undertake these activities
without the express consent of the coastal State; and

159 BAR 2015.

16° UNCLOS, Art. 76(1).
161 Id., Art. 76(3). 163 UNCLOS, Art. 76(1).
162 Id., Art. 76(4) and (6). 1G4 UNCLOS, Arts. 76(4)(a) and 76(5).
50 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 51
ON POLITICAL LAW

3. The rights of the coastal State over the continental shelf In the EEZ, the rights of coastal state have to do with natural
do not depend on occupation, effective or notional, or on resources of both the waters superjacent to the seabed and those
any express proclamation.16s of the seabed and its subsoi1.171 Whereas, in the continental shelf,
the rights related to mineral and other non-living resources of the
Q: Distinguish the rights over the exclusive economic zone seabed and subsoil.'72
and the continental shelf.
Q: Do local government units possess their own continental shelf?
A: Tanaka is of the opinion that "unlike the continental shelf,
the coastal State must claim the zone to establish an EEZ. The A: No. The UNCLOS did not confer on LGUs their own
sovereign rights of the coastal State over the continental shelf are continental shelf. The concept of continental shelf under the
inherent rights, and do not depend on occupation, effective or UNCLOS does not, by the doctrine of transformation,
notional, or on an express proclamation. A continental shelf automatically apply to the LGUs. Even if the UNCLOS were to
exists ipso facto and ab initio."166 be considered to have been transformed to be part of the
municipal law, after its ratification by Congress, the UNCLOS
Q: Distinguish the rights and duties of coastal states in the did not automatically amend the Local Government Code and
EEZ vis-a-vis the continental shelf, where their breadths of the charters of the local government units. It must be stressed
200 nautical miles from the baselines are co-extensive. that the provisions under the UNCLOS are specific in declaring
the rights and duties of a state, not a local government unit. The
A: Magallona specifically explained that in a situation where UNCLOS confirms the sovereign rights of the States over the
both the EEZ and continental shelf extends exactly 200 nautical continental shelf and the maritime zones. The UNCLOS did not
miles from the baselines (i.e., their breadths are co-extensive), confer any rights to the States' local government units.13
the coastal State is obligated to manage and conserve living
resources in the EEZ to prevent over-exploitation and to grant to Archipelagic Doctrine
other states access to such resources.167 No such duty pertains to
the continental shelf. The law of the continental shelf does not Q: State the archipelagic doctrine.
require the coastal State to conserve or share the resources."168
A: The waters around, between, and connecting the islands of
As to living resources, rights of the coastal state in the EEZ do the archipelago regardless of their breadth and dimensions, form
not pertain to sedentary species.169 Whereas, in the continental part of the internal waters of the Philippines.174
shelf, its rights appear only to sedentary species of such living
resources.170

165 UNCLOS, Art. 77.

166 Yoshifumi Tanaka, The International Law of the Sea, 78 (3rd. ed., 2019). 171 Id., Art. 56.1(a).
167 UNCLOS, Arts. 56(1)(a), 61, and 62(2). 172 Id., Art. 77.4.
168 Merlin M. Magallona, Fundamentals of Public International Law, 434-435 (2005 ed.). 173 Republic v. Provincial Government of Palawan, G.R. Nos. 170867 & 185941, 04

169 UNCLOS, Art. 68. December 2018.

170 Id., Art. 77.4. 174 CONST., Art. I.
52 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 53
ON POLITICAL LAW

Q: Which baseline method has been utilized by the The term "archipelagic waters" under UNCLOS19 refers to the
Philippines?r5 body of water lying landward of a country's baselines, including
the air space over it and the submarine areas underneath."
A: In view of the fact that the Supreme Court in Magallona v.
Ermita found that the maritime baselines of the Philippines as an The term "internal waters" refers to all waters within the 12-
archipelagic State have been demarcated by Republic Act (RA) nautical-mile vicinity of the territorial sea and further inward,
No. 3046 and RA No. 5446, Bernas, S.J. explained that these regardless of breadth or dimensions.'
two laws allow the utilization of straight baseline method by the
Philippines.16 This is consistent with Article 47(1) of the UNCLOS Q: Distinguish between territorial sea and the internal
which states that an archipelagic State may draw straight archipelagic waters of the Philippines.182
baselines joining the outermost points of the outermost islands
A: Under Articles 2 and 3 of the UNCLOS, territorial sea is an
and drying reefs of the archipelago.
adjacent belt of sea which shall not exceed 12 nautical miles
Q: Explain the concept of regime of islands. from the baseline.

A: Under the regime of islands, an island is a naturally formed Internal waters, on the other hand, as defined under Article I of
area of land, surrounded by water, which is above water at high the 1987 Constitution, consist of the waters around, between, and
tide, and generates maritime zones, e.g., territorial sea, contiguous connecting the islands of the archipelago, regardless of their
zone, exclusive economic zone, and continental shelf. However, rocks, breadth and dimensions. Article 8 of the UNCLOS defines
which cannot sustain human habitation or economic life of their own internal waters as waters on the landward side of the baseline of
shall have no exclusive economic zone or continental shelf.' the territorial sea.

Q: Distinguish internal waters from archipelagic waters. Q: What are the restrictions to the archipelagic state's
exercise of sovereignty over its archipelagic waters?
A: Archipelagic waters are equivalent to the internal waters of
continental coastal states. On the other hand, all waters around, A: Apart from the fact that the archipelagic state's sovereignty
between, and connecting the islands of the archipelago, regardless over archipelagic waters183 is subject to the right of innocent
of their breadth and dimensions, form part of the internal waters passage,'84 it must also respect the right of archipelagic sea lanes
of the Phi lippines.178 passage of all ships and aircraft. Archipelagic sea lanes passage
means the exercise in accordance with UNCLOS of the rights of
navigation and overflight in the normal mode solely for the purpose
of continuous, expeditious and unobstructed transit between one

179 UNCLOS, Art. 49 (1), (2) and (4).

18° Capitol Wireless Inc. v. Provincial Treasurer of Batangas, G.R. No. 180110, 30
175 BAR 2015, 2016. May 2016.
176 Joaquin G. Bernas, S.J., Introduction to Public International Law, 121 (2009 181 Magallona v. Ermita, G.R. No. 187167, 16 August 2011.
ed.).; Magallona v. Ermita, G.R. No 187167, 16 August 2011. 182 BAR 2004.
177 UNCLOS, Article 121. 183 UNCLOS, Art. 49(1).
178 Magallona v. Ermita, G.R. No. 187167, 16 August 2011. 184 Id., Art. 52(1).
54 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 55
ON POLITICAL LAW

part of the high seas or an exclusive economic zone and another "power" to approve or disapprove such regulations before they take
part of the high seas or an exclusive economic zone.185 effect. It is proscribed under our Constitution since it undermines
the separation of powers guaranteed by the Constitution by
Q: Is the "contiguous zone" part of our "Philippine waters?" allowing the Congress to have a direct role in enforcing,
applying, or implementing its own laws, a task that is lodged
A: Yes. A portion of the "contiguous zone"186 (the first 12
with the Executive Department. 88
nautical miles within the territorial sea) is part of our "Philippine
waters". But outside the territorial sea — to another 12 nautical Q: What is the principle of blending of powers? Give
miles outward — it is still part of the contiguous zone but no examples under the 1987 Constitution.
longer part of our Philippine waters. In other words, only the
first 12 nautical miles (out of the 24 nautical miles) of the A: Blending of powers pertains to powers that are not exclusively
contiguous zone falls within our Philippine waters. confined within one department but are shared with other co-
equal branches to ensure a good and efficient government.189 The
D. Separation of Powers, and Checks and Balances following are some of the instances under the 1987 Constitution that
illustrate this concept:
Q: What is the principle of separation of powers?
1. Law-making where the Congress enacts the bil1,19° and
A: It refers to the constitutional demarcation of the three the President approves it. 19I
fundamental powers of government. To the legislative branch of
government, through Congress, belongs the power to make laws; 2. Preparation of budget where the Executive Department prepares
to the executive branch of government, through the President, a budget, and the Congress enacts an appropriation bill.'
belongs the power to enforce laws; and to the judicial branch of
government, through the Court, belongs the power to interpret laws. 3. Ratification of treaties where the President enters a
Because the three great powers have been, by constitutional design, foreign treaty and the Senate ratifies the same.193
ordained in this respect, "each department of the government has 4. The grant of amnesty by the President is subject to the
exclusive cognizance of matters within its jurisdiction, and is 194
concurrence of majority of all members of the Congress.
supreme within its own sphere."'
5. The power of the Supreme Court to declare a law, treaty.
Q: What is a legislative veto? Is it allowed under our International or executive agreement unconstitutional!'
Constitution?
A: Legislative veto is a statutory provision requiring the
President or an administrative agency to present the proposed
188 ,4/1-11C-ID.4 Guro Party List v. Hon. Cesar Purisirna, G.R. No. 166715, 14 August
implementing rules and regulations of a law to Congress which, 2008.
by itself or through a committee formed by it, retains a "right" or 189 Ople v. Torres, G.R. No. 127685, 23 July 1998.
19° CONST., Art. VI, Sec. 1.
19t CONST., Art. VI, Sec. 27 (1).

185 Id., Art. 53(3). 192 CONST., Art. VI, Sec. 25 (1).

136 Id., Art. 33 states that the contiguous zone may not extend beyond 24 n.m. from the 193 CONST., Art. VII, Sec. 21.

baselines from which the breadth of the territorial sea is measured. I94 CONST., Art. VII, Sec. 19(1).
187
Belgica v. Ochoa, G.R. No. 208566, 19 November 2013. 195 CONST., Art. VIII, Sec. 5(2)(a).
56 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 57
ON POLITICAL LAW

E. State Immunity (1987 CONST., Art. XVI, Sec. 3; P.D. execution or garnishment absent an approval from COA '99 and
No. 1445) 20°
without an appropriation by the Congress as required by law.
Q: What is the Doctrine of Royal Prerogative of Dishonesty? Q: Give instances when a suit is deemed to be a suit against
A: As a general rule, states may not be sued unless it gives it a State.
consent, whether express or implied.' A: The Suit is deemed against the State when:
Q: Explain the Restrictive Rule of State Immunity. 1. The Republic is sued by its name;
A: Under the Restrictive Rule of State Immunity, a distinction 2. The suit is against an unincorporated government agency;
must be made between sovereign and governmental acts of the
government (jure imperii) and private, commercial, and proprietary 3. The suit is against a government agency covered by a
acts (jus gestionis). State immunity only applies to acts jure imperii charter with respect to the agency's performance of
while the restrictive application of state immunity is proper when governmental functions; and
the proceedings arise out of commercial transactions of the foreign 4. The suit is on its face against a government officer, but
sovereign, its commercial activities, or economic affairs.197 the case is such that the ultimate liability will belong not
to the office but to the government.201
Q: Explain the doctrine of "par in parem, non habet imperium."
A: "Par in parem, non habet imperium" means that all states are Q: When is the doctrine of State immunity applicable to
sovereign equals and cannot assert jurisdiction over one another complaints against officials of the State?
and is the basis for state immunity of one state against other A: State immunity is equally applicable to complaints filed
foreign states.198 against officials of the state for acts allegedly performed by them
in the discharge of their duties. The rule is that if the judgment
Q: TRUE OR FALSE: Consent to be sued includes consent
against such officials will require the state itself to perform an
to the execution of judgment against the State. affirmative act to satisfy the same, such as the appropriation of
A: False. Consent to be sued does not include consent to the the amount needed to pay the damages awarded against them,
execution of judgment because the power of the Court ends once the suit must be regarded as against the state itself although it has
the judgment has been rendered. The reason for this is that not been formally impleaded. However, this immunity will be
government properties may not be seized under writs of divested once they are sued in their individual and personal
capacity.202

196 United States of America v. Guinlo, G.R. No. 76607, 26 February 1990. 199 University of the Philippines v. Dizon, G.R. No. 171182, 23 August 2012.
197 Arigo v. Swift, G.R. No. 206510, 16 September 2014. 200 Republic v. Villasor, G.R. No. L-30671, 28 November 1973.
198 Republic of Indonesia v. Vinzon, G.R. No. 154705, 26 June 2003. 201
Professional Video, Inc., v. TESDA, G.R. No. 155504, 26 June 2009.
202
Arigo v. Swift, G.R. No. 206510, 16 September 2014.
 58 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 59
ON POLITICAL LAW

Q: Under the doctrine of immunity from suit, the State CBM contested the termination and filed a complaint against
cannot be sued without its consent. How may the State give Kafiristan before the Regional Trial Court of Makati. The
its consent? Explain your answer.' Ambassador wants you to file a motion to dismiss on the
groundof state immunity from suit and to oppose the position
A: Before a suit can be filed against the State, its consent must
that under Section 10 of the Agreement, Kafiristan expressly
be first obtained whether express or implied. Express consent
waives its immunity from suit. Under these facts, can the
can only be given by an act of the legislative body either through
Embassy successfully invoke immunity from suit?207
general law or special law. On the other hand, implied consent
may be shown through the following :204 A: Yes, the Embassy can invoke immunity from suit. Section 10
of the Maintenance Agreement is not necessarily a waiver of
1. When the State commences litigation except when the sovereign immunity from suit. It was meant to apply in case the
purpose of the intervention is to resist a claim against it; Republic of Kafiristan elects to sue in the local courts or waives
2. When the State itself enters a business contract except if its immunity by a subsequent act. The establishment of a
the contract is incidental to a government function such diplomatic mission is a sovereign function. This encompasses its
as a contract for repair of wharves for national defense;205 maintenance and upkeep. The Maintenance Agreement was in
208
pursuit of a sovereign activity.
3. When it is inequitable for the State to invoke immunity; and
Q: X filed a suit against U.S. Naval Officials A, B, and C to
4. In actions for payment by the owner in eminent domain hold them liable for the damage caused to the Tubbataha
cases.206 reefs by USS Guardian, a U.S. Warship that they operate. A,
B, and C resisted by claiming immunity from suits since the
Q: The Ambassador of the Republic of Kafirista referred to
act subject of the complaint was done in their official
you for handling the case of the Embassy's Maintenance
capacity as commanding officers. On the other hand, X
Agreement with CBM, a private domestic company engaged
argued that there is an absolute waiver of immunity from
in maintenance work. The Agreement binds CBM, for a
suit under the VFA.
defined fee, to maintain the Embassy's elevators, air-
conditioning units, and electrical facilities. Section 10 of the Is X correct in saying that the VFA is an absolute waiver of
Agreement provides that the Agreement shall be governed by State immunity?
Philippine laws and that any legal action shall be brought
before the proper court of Makati. Kafiristan terminated the A: No, X is not correct. The waiver of State immunity under the
Agreement because CBM allegedly did not comply with their VFA pertains only to criminal jurisdiction and not to special civil
209
agreed maintenance standards. actions like a petition for an issuance of a Writ of Kalikasan.

203 BAR 2017.

204
Department ofHealth v. Phil Pharrna Wealth Inc.. G.R. No. 182358, 20 February 2013. 207 BAR 2013.
205 I:rifted 208 Republic of Indonesia v. Vinzon, G.R. No. 154705, 26 June 2003.
Slates of America v. Ruiz, G.R. No. L-35645, 22 May 1985.
206
Republic v. Sandiganbayan, G.R. No. 90478, 21 November 1991. 209 Arigo v. Swift, G.R. No. 206510, 16 September 2014.
60 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 61
ON POLITICAL LAW

Q: Do government-owned or -controlled corporations also enjoy this, P.D. No. 1445 defines where and prescribes the condition
the immunity of the State from suit? Explain your answer.21° under which the State may be sued for monetary claims against
the latter. In this case, the private corporation is claiming the
A: A government-owned or controlled corporation may be sued. expenses it occurred pursuant to a contract it entered into with
A suit against it is not a suit against the State, because it has a MMDA. Moreover, considering that the MMDA has already
separate juridical personality.211 benefited from the works done by the private corporation, it is
Q: MMDA entered into a contract with a private corporation only proper to allow the recovery of the claims pursuant to the
for their interim waste disposal project. Pursuant to the said quantum meruit principle.
contract, the private corporation commenced works on the Anent the second question, the remedy availed of is not
said project with the supervision of the MMDA Office of the correct considering that the the case must be filed with the
Assistant General Manager for Operations. Later on, the COA. Under Commonwealth Act No. 327, as amended by
private corporation sent a formal demand letter for P20M to Section 26 of Presidential Decree No. 1445, it is the COA which
MMDA to recover their alleged incurred expenses under the has primary jurisdiction over money claims against government
contract. When their demands fell on deaf ears, the private agencies and instrumentalities. In one case decided by the
corporation decided to file a complaint for sum of money Supreme Court, it held that it is the COA, and not the Regional
against MMDA. In return, MMDA avered that direct Trial Court, which has primary jurisdiction to pass upon petitioner's
enforcement of liability against it would violate the law money claim against respondent local government unit. Such
because the present case is a suit against the State which has jurisdiction may not be waived by the parties' failure to argue the
not given its consent to be sued. Accordingly, the remedy of issue or by their active participation in the proceedings. Hence,
the respondents is allegedly to file their money claim with the the claim should have been filed with the COA.212
Commission on Audit (COA) as provided under Act No. 3083
and Commonwealth Act No. 327. The determination of State F. Delegation of Powers (1987 CONST., Art. VI, Secs. 1,
liability, and the prosecution, enforcement or satisfaction 23(2) and 28(2))
thereof must be pursued in accordance with the rules and
procedures laid down in Presidential Decree No. 1445. Can Q: Explain the two tests for valid delegation of powers.
the MMDA validly resist payment on ground of immunity A: To examine whether the delegation of powers is valid or not,
from suits? Is the remedy of filing a collection suit availed of the following tests must be satisfied: (a) the completeness test
by the private corporations, correct? and (b) the sufficient standard test. Under the completeness test,
A: Anent the first question, MMDA cannot validly resist all the terms and provisions of the law must leave nothing to the
payment on ground of immunity from suits. It must be noted that delegate but to implement it. On the other hand, the sufficient
the prohibition against suing the state only applies absent its standard test necessitates the presence of limitations and guidelines
consent, whether express or implied. Express consent comes to determine the scope of authority of the delegate.213
from the state acting through a duly enacted statute. In relation to

212 Metropilitan Manila Development Authority v. D.M. Consunji, G.R. No. 222423,
M BAR 2017. 20 February 2019.
21 1 SSS v. Court of Appeals, G.R. No. L-41299, 21 February 1983. 213 Kilusang Mayo Uno v. Aquino, G.R. No. 210500, 02 April 2019.
62 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 63
ON POLITICAL LAW

Q: Can the policy consideration be couched in general terms? Q: What are the requisites for an executive order to be valid?
A: Yes, the Court has recognized the validity of policy considerations A: An executive order must comply with the following requisites
couched in general terms such as "public interest," "justice and to be held valid:
equity," "public convenience and welfare," "simplicity, economy,
and welfare"214 and "genuine local development and the assistance 1. The promulgation must be authorized by the legislature;
of LGUs."215 2. It must be promulgated in accordance with prescribed
procedure;
Q: After Mt. Pinatubo erupted, the Sangguniang Panlalawigan
of Pampanga enacted several tax ordinances which imposed 3. It must be within the scope of authority given by the
certain taxes on the fair market value of quarry resources legislature; and
extracted from public lands and beds of water bodies.
However, President Arroyo issued Executive Order No. 224 4. It must be reasonable.217
(EO224) rationalizing the extraction and disposition of sand,
gravel, and lahar deposits in the provinces of Pampanga, Q: R.A. No. 9262 (An Act Defining Violence Against Women
Tarlac and Zambales. This prompted the Province of Pampanga and their Children) authorizes the Punong Barangay to issue
to file a Petition for Declaratory Relief on the premise that Barangay Protection Orders (BPO) and direct the perpetrator
EO224 invalidly supplanted portions of the Local Government to desist from causing physical harm to the woman or her
Code and Philippine Mining Act. Is EO 224 ultra vires for child as well as to refrain from threatening to cause such
going beyond the limits of its delegated legislative authority? harm. This prompted Yawi to assail the constitutionality of
this law on the basis that it is an invalid delegation of judicial
A: No, EO 224 is not ultra vires. In fact, it is not an exercise of power. Is Yawi correct in hiscontention?
the delegated power of the President but rather an exercise of the
A: No, Yawi is not correct. The power of the Punong Barangay
president's inherent ordinance-making power. Under the delegated
legislative authority, the power to issue implementing rules to issue a BPO is purely administrative in nature since it only
allows the concerned officer to determine if there is a reasonable
creates rights and obligations that affect the public at large,
ground to believe that an imminent danger of violence against
while the ordinance-making power is the authority to issue "intra
branch orders and instructions or internal rules for the executive the woman and her children exists or is about to recur that would
necessitate the issuance of a BPO. The mere fact that an officer
branch," which do not bind the public. EO 224 merely provided
the necessary rules for the concerned agencies to execute the is required by law to inquire into the existence of certain facts
and to apply the law thereto in order to determine what his
Philippine Mining Act in relation to the quarry industry of the
official conduct shall be and the fact that these acts may affect
provinces affected by Mt. Pinatubo's eruption, without going
private rights do not constitute an exercise of judicial powers.218
beyond the bounds of the law it meant to implement.'

214
Equi-Asia Placement, Inc. v. Department of Foreign Affairs, G.R. No. 152214,
19 September 2006. 217 Executive Secretary v. Southwing Heavy Industry Inc., G.R. No. 164171, 20
215 Belgica v. Executive Secretary, G.R. No. 210503, 08 October 2019. February 2006.
216 Province ofPampanga v. Executive Secretary, G.R. No. 195987, 12 January 2021. 218 Garcia v. Drilon, G.R. No. 179267, 25 June 2013.
64 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 65
ON POLITICAL LAW

Q: Discuss the principle of "delegata potestas non potest G. Fundamental Powers of the State — Police Power, Eminent
delegari." Domain and Taxation
A: What has once been delegated by Congress can no longer be 1. Concept, Application, and Limitations (1987 CONST.,
further delegated or redelegated by the original delegate to another?' Art. III, Sec. 9; Art. VI, Sec. 28; Art. XIV, Sec. 4(3))
Q: What is the scope of the delegated power? Is it also Q: Differentiate the three inherent powers of a State.
plenary in nature like the Congress?
A: The three inherent powers differ from one another in the
A: The delegated legislative power is not plenary. It is following aspects:226
necessarily narrower than that of the delegating authority and
may only be exercised in strict compliance with the terms of the Eminent
Police Power Taxation Domain
delegating law."'

Q: What are the instances when legislative power may be Extent Regulates both Only affects property
delegated? liberty and
property
A: The following are instances when legislative power may be
delegated: Who may May only be exercised by the May be granted
exercise government to private
1. Tariff Powers to the President" entities
2. Emergency Powers to the President222 Purpose To promote the To sustain the Must be
general welfare government devoted for a
3. Delegation to the People in form of initiative or
public benefit
referendum223
Benefit/ Public good Protection Full and fair
4. Delegation to the Local Government Units224
Compensa given and/or equivalent of
5. Delegation to Administrative Bodies.' lion public the property
improvements taken
instituted by
government
for the taxes
paid.
21° Dalantal v. Deportation Board, G.R. No. L-16812, 31 October 1963.
220
PNOC Alternative Fuels v. National Grid Corporation, G.R. No. 224936, 04
September 2019.
221 CONST., Art. VI, Sec. 28(2).

I
222 CONST., Art. VI, Sec. 23(2).
223 CONST., Art. VI, Sec. 32.
224 R.A. No. 7160, hereinafter "Local Government Code" (1991).
223 Tablarin v. Gutierrez, G.R. No. 78164, 31 July 1987. 220 Antonio Eduardo B. Nachura, Outline Reviewer in Political Law, 60 (2016 ed.).
66 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 67
ON POLITICAL LAW

Police Power Q: What are the requisites for a valid ordinance by an LGU?

Q: What is Police Power? A: Aside from the requirement that the LGU must be
empowered to issue such ordinance, it must also conform to the
A: Police power is characterized as the most essential, insistent following requirements:
and the least limitable of powers, extending as it does "to all the
great public needs."227 It is the power to promote public welfare a) Must not contravene the Constitution or any statute;
by restraining and regulating the use and enjoyment of liberty b) Must not be unfair or oppressive;
and property.228
c) Must not be partial or discriminatory;
Q: What are the tests for a valid exercise of police power?
d) Must not prohibit but may regulate trade;
A It must be for a lawful subject (the interests of the public
generally, as distinguished from those of a particular class), and e) Must be general and consistent with public policy; and
done by lawful means (must be reasonably necessary for the
f) Must not be unreasonable."'
accomplishment of purpose and not unduly oppressive upon
individuals).229 Q: Decide whether the exercise of the police power is valid
or not.
Q: Does LGUs have a police power? If yes, what is the basis
for the exercise of the same? 1. Closure of a slaughterhouse located near local residences
that is a menace to public health;
A: Yes. The police power of the State is a delegated power to
the LGUs, generally exercised by them under the General Welfare 2. Regulation or prohibition of manufacture and sale of
clause of the LGC. The provisions provide that every LGU shall intoxicating liquors as a beverage within its borders;
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental 3. Issuance of LOI No. 1465 which imposed a certain
for its efficient and effective governance, and those which are price formula for fertilizers which must not be less
essential to the promotion of the general welfare.2" than P10 per bag in order to make the PPI, a private
corporation, viable;
4. Passage of a municipal resolution which grants P500
assistance to bereaved families, the funds of which
shall be taken from the unappropriated available
funds existing in the municipal treasury; and
5. Social security system premium hike.
227 Ermita Malate Hotel and ivIotel Operators Associations v. Hon. City of Manila,
G.R. No. L-24693, 31 July 1967.
228 Rubi et.al v. The Provincial Board of Mindoro, G.R. No. L-14078, 07 March 1919.
229 Planters Products v. Fertiphil Corporation, G.R. No. 166006, 14 March 2008.
230
Batangas CATV, Inc., v. Court of Appeals, G.R. No. 138810, 29 September
2004. 231 White Light Corporation v. City of Manila, G.R. No. 122846, 20 January 2009.
68 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 69
ON POLITICAL LAW

A: property without payment of just compensation. Rule on the

contention of Southern Luzon Drug Corporation.
1. Valid. It is an exercise of police power in view of the
right of the State to protect public health.' A: The contention of Southern Luzon is without merit. It is
elementary that police power is one of the inherent powers of the
2. Valid.233
government. It pertains to the power of the state to promote
3. Invalid, considering that it was imposed for the benefit public welfare by restraining and regulating the use of liberty
of a private corporation alone.234 and property. It is the most pervasive, the least limitable, and the
most demanding of the three fundamental powers of the State. It
4. Valid. The LGUs have the power to pass ordinances and is precisely because of such power that the discounts were
resolution pursuant to the general welfare clause. In this granted to the elderly as well as PWDs. Moreover, the change in
case, the care for the poor is generally recognized as a the tax treatment is also a valid exercise of police power
public duty. The support for the poor has long been an considering that the interests of the senior citizens and PWDs are
accepted exercise of police power in the promotion of recognized as public duty of the State and that the means
the common good.235 employed are reasonably necessary for the attainment of the
objective sought. In this case, the measure is fair and reasonable,
5. Valid. In this case, the increases reflected in the issuances
and no credible proof was presented to prove the claim that it
are reasonably necessary to observe the constitutional
was confiscatory."'
mandate of promoting social justice under the Social
Security Act. In order to achieve this mandate, the SSS Q: May a law be given retroactive effect and impair contracts
are empowered to adjust from time to time the contribution already in existence?
rate and the monthly salary credits.'
A: Yes, a law enacted in the exercise of police power
Q: RA 9257 or the Expanded Senior Citizens Act as amended envisioned to regulate certain activities or transactions could be
by RA 7432 was passed granting senior citizens and persons given retroactive effect and may reasonably impair vested rights
with disabilities (PWDs) 20% discount, the amount of which or contracts. Police power legislation is applicable not only to
may be treated by the covered establishments as tax deduction. future contracts, but equally to those already in existence.
Claiming that this affected the profitability of their business, Moreover, laws in issued in exercise of valid police power must
Southern Luzon Drug Corporation filed a Petition for Review be read into every contract."'
on Certiorati, assailing the validity of the difference in the tax
treatment on the ground that it amounts to taking of private

232 The United States v. Dominador Jesus, G.R. No. L-9651, 04 August 1915.
233
Id.
234 Planters Products v. Fertiphil Corporation, G.R. No. 166006, 14 March 2008.
235 Hon. Jejomar Binay v. Hon. Eufemio Domingo, G.R No. 92389, 11 September 1991. 237 Southern Luzon Drug Corporation v. Department of Social Welfare and Development
236 Kilusang Mayo Uno v. Hon. Benigno Simeon Aquino III, G.R. No. 210500, 02 et.al, G.R. No. 199699, 27 April 2017.
April 2019. 238 Ortigas & Co. v. Court of Appeals, G.R. No. 126102, 04 December 2000.
 70 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE• CONSTITUTION 71
ON POLITICAL LAW

Eminent Domain 5. the utilization of the property for public use must be in
such a way as to oust the owner and deprive him of all
Q: What is the power of eminent domain? beneficial enjoyment of the property.242
A: The right of eminent domain is "the ultimate right of the
Q: Is actual and complete deprivation of property needed
sovereign power to appropriate, not only the public but the before an act can amount to a taking?
private property of all citizens within the territorial sovereignty,
to public purpose."239 A: No, actual and complete deprivation of property is not
required. It is settled that the taking of private property for public
Q: Is the exercise of powers of eminent domain subject to use, to be compensable, need not be an actual physical taking or
judicial review? appropriation. Indeed, the expropriator's action may be short of
A: Yes, the Court can exercise the power of judicial review in acquisition of title, physical possession, or occupancy but may
the following areas of concern: (1) adequacy of the compensation; still amount to a taking. Compensable taking includes destruction,
(2) necessity of taking, except when exercised by the Congress, restriction, diminution, or interruption of the rights of ownership
and (3) public-use character of the purpose of the taking. 240 or of the common and necessary use and enjoyment of the
property in a lawful manner, lessening or destroying its value. It
Q: What are the mandatory requirements for eminent domain? is neither necessary that the owner be wholly deprived of the use
of his property, nor material whether the property is removed from
A: The mandatory requirements for taking of property under the possession of the owner, or in any respect changes hands."
eminent domain are (a) that it is for a particular public purpose;
and (b) that just compensation be paid to the property owner.' Q: What is public use in relation to the power of eminent
domain?
Q: When is there a "taking" of the private property?
A: Public use, under eminent domain concept, is now defined to
A: For taking to occur, the following circumstances must concur: include any use that is of "usefulness, utility, or advantage, or
what is productive of general benefit of the public."
1. the expropriator must enter private property;
2. the entrance into private property must be for more than Q: What is just compensation under eminent domain?
a momentary period; A: Just compensation, in expropriation cases, is defined as the
3. the entry into the property should be under warrant or full and fair equivalent of the loss of the property taken from its
color of legal authority; owner by the expropriator. Its true measure is not the taker's
gain, but the owner's loss.'
4. the property must be devoted to a public use or other
wise informally appropriated or injuriously affected; and

242 Republic of the Philippines v. Estate of Posadas III, G.R. No. 214310, 24
February 2020 citing Rep. of the Phils. v. Vda. de Castellvi, 157 Phil. 329 (1974).
239 Republic v. Heirs qlSaturnino Borbon, G.R. No. 165354, 12 January 2015. 243 National Power Corporation v. Heirs of Sanglcay, G.R. No. 165828, 24 August 2011.
240 Robern Development Corporation v. Quitain, G.R. No. 135042, 23 September 1999. 244 Id.
241 Vela. De Ouano v. Republic, G.R. No. 168770, 9 February 2011. 243 Republic v. Spouses Silvestre, G.R. No. 237324, 06 February 2019.
72 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 73
ON POLITICAL LAW

Q: Explain the two stages involved in expropriation proceedings. 6. for entities exercising a mere delegated power of
expropriation, there is a need to demonstrate possession
A: Expropriation cases are divided into two stages, namely: (1) of the authority to exercise such power of expropriation.
the determination of the propriety of condemning the property
and (2) the determination by the courts of the just compensation. Q: Why is it important to determine the actual time of taking?
The first phase begins with the filing of the complaint before the
trial court, which is then tasked to ascertain the purpose of the A: The determination of the time of taking is necessary for two
taking. If it finds that the property is being taken for a public reasons. First, for computing the interest, which is imposed as
purpose, it shall issue an order condemning the property, damages for delaying the payment of just compensation, begins to
otherwise it must dismiss the case. If the court issues an order of run from the time the property is taken from its owner. Second,
condemnation, it must then proceed to the second phase, i.e., the the nature of the deposit required pending the determination of
determination of just compensation. For this purpose, the rules just compensation will depend on whether the property was
direct the trial court to appoint commissioners, who will be taken before or after the date of effectivity of Republic Act
assigned to aid it in ascertaining the fair value of the (R.A.) No. 8974, which governs expropriation proceedings relative
expropriated property. The trial court will then set the amount of to national government infrastructure projects.248
just compensation, order the plaintiff to pay such amount to the
defendant, and proceed to completely dispose of the case.' Q: National Grid Corporation ("NGCP") of the Philippines
was granted the right of eminent domain under Republic Act
Q: What are the factors that Court must consider in No. 9511. Notably, one of the conditions under NGCP's
determining the sufficient of an expropriation complaint? franchise is the need for the prior approval by the Energy
Regulatory Commission ("ERC") of any plan for expansion
A: In Iloilo Grain Complex Corporation vs. Hon. Enriquez- of improvement of the facilities of the TransCo. Pursuant to
Gaspar,247 the Court has laid down the following criteria used its delegated power of eminent domain, NGCP offered to buy
to determine the sufficiency of an expropriation complaint: certain portions of the Iloilo Grain ("IGCC") industrial
1. that the property taken must be private property; property for the construction of a Cable Terminal Line Station
and Transmission Line Project. However, both parties differed
2. there must be genuine necessity to take the private as to the sufficiency of the amount for just compensation.
property; Accordingly, NGCP filed a complaint for expropriation with
an urgent prayer for an issuance of a writ of possession
3. the taking must be for public use; before the Regional Trial Court of Iloilo City. For its part,
4. there must be payment of just compensation; IGCC filed an Answer with motion for preliminary hearing
on affirmative defenses raising as issues the necessity of
5. the taking must comply with due process; and expropriating the property vis-à-vis the project's lack of
approval from Energy Regulatory Commission and lack of
an honest to goodness negotiation, among others. Notwithstanding
246 Republic of the Philippines v. Estate of Posadas III, G.R. No. 214310, 24
February 2020.
247 Iloilo Grain Complex Corporation vs. Hon. Enriquez-Gaspar, G.R. 265153, 12 248 Republic of the Philippines v. Estate of Posadas III, G.R. No. 214310, 24
April 2023. February 2020.
74 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 75
ON POLITICAL LAW

this, the trial court still issued the writ of possession without Q: Can the government compel a telephone company to permit
conducting any hearing on IGCC's affirmative defenses. In the interconnection between the government telephone system
support thereof, the RTC explained that the issuance of a and the one owned by the telephone company?
writ of possession has become ministerial in nature as NGCP
had sufficiently alleged its authority to expropriate the subject A: Yes, provided it is adequately proven that the needs of the
government service require such compulsion and subject to the
property and was able to comply with the requirements for
payment of just compensation to be determined by the court.
issuance of the writ of possession. Is the issuance of a writ of
Nominally, of course, the power of eminent domain results in the
possession a ministrial duty on part of the trial court upon
taking or appropriation of title to, and possession of, the
the filing of the complaint and payment of deposit money?
expropriated property; but no cogent reason appears why the said
A: No, the issuance of the writ of possession is not ministerial power may not be availed of to impose only a burden upon the
on part of the trial courts. It is well-settled that in expropriation owner of condemned property, without loss of title and
cases, questions regarding the validity of the exercise of the possession. It is unquestionable that real property may, through
power of eminent domain which primarily pertains to its expropriation, be subjected to an easement of right of way. The
necessity must first be resolved before the court may even tackle use of the PLDT's lines and services to allow inter-service
the issue of the propriety of just compensation. Furthermore, in connection between both telephone systems is not much different.'
cases where such power is merely delegated as in this case, it is
imperative to ensure that the exercise of such right is in Expropriation by Local Government Units
conformity with the delegating law. Lastly, it must also be
Q: What are the conditions for the local government unit
shown that the complaint is sufficient not just in terms of form
(LGU) to exercise eminent domain?
but more importantly, in terms of the substance of its allegations.
Applying the foregoing to the present case, the failure of NGCP A: The following are the conditions for the LGU to expropriate:
to allege in its complaint that it had secured the required ERC
approval for the projects that were used as the basis of the 1. an ordinance is enacted by the local legislative council
expropriation proceedings as well as NGCP's failure to choose authorizing the local chief executive, on behalf of the
the portion that is least burdensome to the landowner rendered local government unit, to exercise the power of eminent
the complaint insufficient in substance. Accordingly, a hearing domain or pursue expropriation proceedings over a
must first be conducted to resolve these matters as they particular private property;
essentially hinge on the issue of necessity vis-a-vis the 2. the power of eminent domain is exercised for public use,
expropriator's compliance with the statutory requirements for a purpose, or welfare, or for the benefit of the poor and the
valid exercise of the power of eminent domain. In essence, landless;
courts should not issue a writ of possession if the very authority
of the plaintiff is in question.' 3. there is payment of just compensation, as required under
Section 9, Article III of the Constitution, and other
pertinent laws; and

249Iloilo Grain Complex Corporation vs. Hon. Enriquez-Gaspar, G.R. 265153, 12 250 Republic of the Philippines v. PLDT, G.R.No. L-18841, 27 January 1969.
April 2023.
76 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 77
ON POLITICAL LAW

4. a valid and definite offer has been previously made to Q: The Government, through Secretary Tagodoy of the
the owner of the property sought to be expropriated, but Department of Transportation (DOTr), filed a complaint for
said offer was not accepted.25' eminent domain to acquire a 1,000-hectare property in Bulacan,
owned by Baldomero. The court granted the expropriation,
Q: NAPOCOR filed a complaint for expropriation against fixed the amount of just compensation, and installed the
petitioner Ricky and petitioners Spouses Vivi Valdes (collectively, Government in full possession of the property.
petitioners) before the RTC seeking the acquisition of an
easement of right of way over certain portions of subject lots a) If the Government does not immediately pay the
for the construction and maintenance of Transmission Line amount fixed by the court as just compensation, can
for Negros IV-Panay Project. Baldomero successfully demand the return of the
property to him? Explain your answer.
In their Answer, petitioners contended that apart from the
area sought to be expropriated, the remainder of the affected A: If the government does not pay Baldomero the just compensation
lots will suffer a reduction in value due to the installation of immediately, he cannot demand the return of the property to him.
NAPOCOR's post, transmission lines, transformers, and Instead, legal interest should be paid from the time of taking of
other facilities, for which they are entitled to consequential the property until actual payment in full."
damages. Are the petitioners correct?
b) If the Government paid full compensation but after
A: Yes, the petitioners are entitled to consequential damages. two years it abandoned its plan to build an airport on
Jurisprudence provides that the amount of just compensation a the property, can Baldomero compel the Government
landowner is entitled to receive is equivalent to the fair market to resell the property back to him? Explain your
value of the property to be expropriated. Nevertheless, where answer.254
only portion of a certain property is to be acquired, the owner is
A: With respect to the element of public use, the expropriator
not restricted only to compensation for the part actually taken but
should commit to use the property for the purpose stated in the
is likewise entitled to recover consequential damages for the
petition. If not, it is incumbent upon it to return the property to
remainder of the property, which may suffer an impairment or
the owner if the owner desires to reacquire it. Otherwise, the
decrease in value as an incidental result of the expropriation,
judgment of expropriation will lack the element of public use.
provided such fact is proven by sufficient evidence.
The owner will be denied due process, and the judgment will
In this case, records show that the value of the affected lots was violate his right to justice.' If the just compensation was not
impaired on account of their close proximity to the power posts, paid within 5 years from finality of judgment, the owner is
transmission lines, and other facilities installed on the subject entitled to recover the property.256
lots, which constrained the use of the properties, and created a
perceived fear of radiation, electrocution, and other health risks
in the minds of prospective buyers.'

2'3 Republic v. Court of Appeals, G.R. No.146587, 02 July 2002.

254 BAR 2016.
251 City of Manila v. Prieto, G.R. No. 221366, 08 July 2019. 255 Alactan-Cebu Airport Authority v. Lozada, Sr., G.R. No. 176625, 25 February 2010.
252 Schulze, Sr. v. NAPOCOR, G.R. No. 246565, 10 June 2020. 256 Republic v. Lan, G.R. No. 161656, 29 June 2005.
78 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 79
ON POLITICAL LAW

Q: Can expropriation be resulted into as a substitute for the any impairment of the estate or title acquired, or any
enforcement of valid contract? reversion to the former owner.258

A: No, expropriation, as a manifestation of the right of eminent Q: Compare and contrast the requirements needed for the
domain of the state and as a limitation upon private ownership, is expropriation of national government and expropriation of a
based upon the consideration that it should not be an obstacle to local government unit.
human progress and to the development of the general welfare of
the community. It only lies when it is made necessary by the A: The exercise of the power of expropriation by national
opposition of the owner to the sale or by the lack of any agreement government and local government units differs with each other
as to the price. It cannot be used as an instrument to repudiate in the following matters to wit:
compliance with obligations legally and validly contracted.257 LOCAL GOVERNMENT
NATIONAL
Q: When private land is expropriated for a particular public GOVERNMENT UNIT (SEC. 19, LGC)
use, and that particular public use is abandoned, does its Taking must be for public use For public use, or purpose, or
former owner acquire a cause of action for the recovery of welfare for the benefit of the
the property? poor and the landless
A: It depends upon the character of the title acquired by the No need for prior offer A valid and definite offer has
expropriator, whether it be the State, a province, a municipality, been made but was not
or a corporation which has the right to acquire property under the accepted
power of eminent domain.
Genuine necessity is not Needs genuine necessity
1. If, for example, land is expropriated for a particular needed so long as it is
purpose, with the condition that when that purpose is devoted to public use
ended or abandoned the property shall return to its
former owner, then, of course, when the purpose is The procedure for expropriation under Rule 67 of the Rules on
terminated or abandoned the former owner reacquires Civil Procedure must be complied with
the property so expropriated.
There must be an ordinance
2. When land has been acquired for public use in fee simple, (not merely a resolution)
unconditionally, either by the exercise of eminent authorizing the Local Chief
domain or by purchase, the former owner retains no Executive to exercise the
rights in the land, and the public use may be abandoned power of eminent domain for
or the land may be devoted to a different use, without public use, or purpose, or
welfare for the benefit of the
poor and the landless.

257 Noble v. City of Manila, G.R. No. 44142, 24 December 1983. 288 Air Transportation Office v. Gopuco, G.R. No. 158563, 30 June 2005.
80 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 81
ON POLITICAL LAW

RA 8974 - An Act to Facilitate the Acquisition of Right-of-Way, assessed value of the property before it can enter and
Site or Location for National Government Infrastructure for purposes of taxation. exercise proprietary rights.26°
Projects and for Other Purposes
FOR LOCAL
Q: Compare and contrast the rule governing the expropriation GOVERNMENT:
by national government and local government, and the At least 15% of the fair
expropriation for national government infrastructure projects: market value of the property
A: Rule 67 primarily governs the expropriation by national based on the current tax
government and local government, while RA 8974 governs the declaration of the property to
expropriation for national government infrastructure projects, be expropriated.
with Rule 67 applying in a suppletory manner. The two differs
Q: What are the factors that the Court may consider in
as follows:
determining the amount of just compensation in cases of
RULE 67 RA 8974 expropriation for national government infrastructure projects?

For public use, public welfare, For national infrastructure A: In order to facilitate the determination of just compensation,
benefit of the poor and landless projects, engineering works the court may consider, among other well-established factors, the
and service contracts259 following relevant standards:

Only required to make initial Immediate payment is required 1. The classification and use for which the property is
deposit with authorized government upon filing of complaint to be suited;
depositary entitled to a writ of possession 2. The developmental costs for improving the land;
Assessed value of property Market value of property as 3. The value declared by the owners;
for purposes of taxation stated in tax declaration or
current relevant zonal valuation 4. The current selling price of similar lands in the vicinity;
of the BIR, whichever is
5. The reasonable disturbance compensation for the removal
higher, plus the value of
and/or demolition of certain improvement on the land
improvements
and for the value of improvements thereon;
FOR NATIONAL The government must make a
6. This size, shape or location, tax declaration and zonal
GOVERNMENT: direct payment of the 100%
valuation of the land;
The initial deposit must be an value of the property of the
amount equivalent to the proffered value of the property 7. The price of the land as manifested in the ocular findings,
oral as well as documentary evidence presented; and

259 Republic Act No. 8974, Section 2. 260 Republic Act No. 8974, Section 4(a).
82 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 83
ON POLITICAL LAW

8. Such facts and events as to enable the affected property A: No. Removing the tax exemption privilege under SC38 will
owners to have sufficient funds to acquire similarly violate the non-impairment clause of the Constitution. A
situated lands of approximate areas as those required distinction must be made between a tax exemption privilege
from them by the government, and thereby rehabilitate agreed to by government in contracts in exchange for valid and
themselves as early as possible.' material consideration that it will receive, and tax exemptions
contained in special privileges. Contractual tax exemptions are
Taxation subject to the non-impairment clause of the Constitution while
tax exemptions granted under legislative franchises are not. Inasmuch
Q: What is the power of taxation? as the tax exemption privilege under SC38 is a contractual tax
A: It is the power of the State to levy taxes to be used for public exemption granted by the government in exchange for a valid
purpose.' and material consideration, said tax exemption may not be
unilaterally withdrawn without violating the non-impairment
Q: What are the requirements for charitable institutions, clause of the 1987 Philippine Constitution.'
churches, parsonages, or convents appurtenant thereto,
mosques, non-profit cemeteries to be exempt from real Q: DLSU, a non-stock, non-profit educational institution, received
property tax? a final assessment notice (FAN) from the BIR assessing it of
deficiency taxes pertaining to income tax on the rental earnings
A: Article VI, Section 28(3) of the 1987 Constitution provides from restaurants, canteens, and bookstores operating within
that the lands, buildings, and improvements of the aforementioned the campus. DLSU protested the assessment relying on
institutions must be ACTUALLY, DIRECTLY, AND EXCLUSIVELY Article XIV, Section 4(3) of the Constitution which provides
used for religious, charitable, or educational purpose to be that ALL revenues and assets of non-stock, non-profit
exempt from taxation. educational institutions shall be exempt from taxes so long as
they are actually, directly, and exclusively used for educational
Q: The Philippines entered into a Service Contract (SC38) purposes. Is DLSU liable for income tax on its rental earnings
with Shell, Chevron and PNOC for the exploration, development despite proving that such income is used for educational purposes?
and utilization of petroleum and natural gas in the Camago-
Malampaya located in Palawan. SC38 was signed by A: No. The revenues and assets of non-stock, non-profit educational
President Cory for and on behalf of the Republic. One of the institutions proved to have been used actually, directly, and
rights under SC38 is exemption from all taxes, except income exclusively for educational purposes are exempt from duties and
tax. However, all three companies received a letter from the taxes. The tax exemption granted to non-stock, non-profit educational
Revenue District Officer informing them that the sale of institutions is conditioned only on the actual, direct, and exclusive
natural gas is now subject to the payment of value-added tax use of their revenues and assets for educational purposes.'
(VAT) pursuant to the passage of R.A. No. 9337 as implemented
by Revenue Regulation No. 16-2005. Are the companies
liable for VAT despite SC38?

261
Republic Act No. 8974, Section 5. 263 VAT Ruling No. 007-06, 07 June 2006.
262 Planters Product Inc., v. Fertiphil Corporation, G.R. No. 166006, 14 March 2008. 264 CIR v. De La Salle University, G.R. No. 196596, 09 November 2016.
84 COMPENDIOUS BAR REVIEWER 1987 PHILIPPINE CONSTITUTION 85
ON POLITICAL LAW

Q: If a hospital admits paying patients, does it destroy the 2. The authorization granted to the President must be
charitable nature of the hospital? embodied in a law. Hence, the justification cannot be
supplied simply by inherent executive powers. It cannot
A: As a general principle, a charitable institution does not lose arise from administrative or executive orders promulgated
its character as such and its exemption from taxes simply by the executive branch or from the wisdom or whim of
because it derives income from paying patients, whether out- the President.
patient, or confined in the hospital, or receives subsidies from the
government, so long as the money received is devoted or used 3. The authorization to the President can be exercised
altogether to the charitable object which it is intended to achieve; only within the specified limits set in the law and is
and no money inures to the private benefit of the persons further subject to limitations and restrictions which Congress
managing or operating the institution.265 may impose. Consequently, if Congress specifies that
the tariff rates should not exceed a given amount, the
Q: Can the power to tax be delegated to executive agencies? President cannot impose a tariff rate that exceeds such
amount. If Congress stipulates that no duties may be
A: No, Congress cannot delegate the power to tax to executive
imposed on the importation of corn, the President cannot
agencies. While the power to tax cannot be delegated, details as
impose duties on corn, no matter how actively the local
to the enforcement and administration of an exercise of such
corn producers lobby the President.
power may be left to the executive agencies, including the power to
determine the existence of facts on which its operation depends.'

Q: State the governing rules regarding Congress' power to

delegate to the President the power to impose tariff rates:
A: Article VI, Section 28(2) of the 1987 Constitution empowers
the Congress to delegate to the President the power to fix 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, subject to the
following limitations:267
1. Itis the Congress alone that can authorize the President
to impose tariff rates, import and export quotas, tonnage
and wharfage dues, and other duties or imposts.

CIR v. St. Luke's Medical Center, G.R. No. 195909, 26 September 2012.
265
266 ABAKADA Guro Party List v. Ermita, G.R. No. 168056, 01 September 2005.
267
Southern Cross Cement Corporation v. Cement Manufacturers Association of
The Philippines, G.R. No. 158540, 03 August 2005.
 LEGISLATIVE DEPARTMENT 87

Q: Queenie was found abandoned as a newborn infant in a

II. Legislative Department church located in Iloilo. She was then adopted by popular
actor Cardo and his wife, Alyanna. Upon reaching 35 years
A. Congress: Senate and House of Representatives old, Queenie filed a certificate of candidacy to join the
senatorial race. This caused Clarice to file a petition to deny
1. Compositions and Qualifications (1987 CONST., Art. VI,
Secs. 2-14) due course or cancel Queenie's COC on the ground that
Queenie cannot be considered as a natural-born Filipino since
Q: What are the two types of legislative power? she was a foundling. Is Queenie eligible to run for Senator?
A: Legislative power may be classified into two: original legislative A: Yes. Foundlings are considered natural-born citizens. In fact,
power which is possessed by the sovereign people and derivative the framers intended for foundlings to be expressly included in
legislative power which pertains to the power delegated by the the list of who may be considered Filipino citizens and the only
sovereign people to legislative bodies like the Congress.' reason it was not carried it out was only because their number
was not enough to merit specific mention. In addition, foundlings
Senate are likewise treated as citizens under international law such as
Universal Declaration of Human Rights (UDHR) and International
Q: A candidate for Senator must be at least 35 years old on Covenant on Civil and Political Rights (ICCPR). These conventions
are considered generally accepted principles of international law
(a) the day he is duly proclaimed. and are binding on the Philippines.270

(b) the day the election is held. Q: What are the qualifications of a Senator as provided for
under the Constitution?
(c) the day he files his certificate of candidacy.
A: Article VI, Section 3 of the 1987 Constitution provides the
(d) the day he takes his oath of office. following qualifications for one to be a candidate for, elected to,
A: (a) The day the election is held.269 and be a member of the Senate:
1. Natural-born citizen;
Q: TRUE OR FALSE: A naturalized citizen may be elected
as a Senator of the Philippines. 2. At least 35 years of age on the day of the election;
A: False. Article VI, Section 3 of the 1987 Constitution 3. Able to read and write;
provides that "No person shall be a senator unless he is a natural
born citizen of the Philippines." 4. Registered voter; and
5. Resident of the Philippines for not less than 2 years
immediately preceding the day of elections.
268 Garcia v. COMELEC, G.R. No. 111230, 30 September 1994.
269 BAR 2011.

86 27° Poe-Llainanzares v. COMELEC, G.R. No. 221697, 08 March 2016.

88 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 89
ON POLITICAL LAW

Q: May the COMELEC compel senatorial aspirants to 4. A registered voter in the district in which he shall be
undergo mandatory testing as a pre-condition for one to elected; and
become Senator?
5. Resident in the district in which he shall be elected for a
A: No. It is basic that if a law or an administrative rule violates period of not less than one year immediately preceding
any norm of the Constitution, that issuance is null and void and the day of the election.
has no effect. The assailed resolution effectively enlarges the
qualification requirements enumerated in the Article VI, Section Q: May X, a member of the House who has served for 2
3 of the Constitution.271 consecutive terms run again in the next elections following
the end of his second term?
Q: Can a senator be elected for more than two consecutive terms?
A: Yes. Article VI, Section 7 of the 1987 Constitution provides
A: No. Article VI, Section 4expressly provides that no senator that the limit for members of the House is three consecutive
shall serve for more than two consecutive terms and that in terms. This is different from the two consecutive term limitation
determining the same, voluntary renunciation of the office for that is imposed for the Senators. Since X has only served for two
any length of time shall not be considered as an interruption in the consecutive terms, X can still run in the next elections.
continuity of his service for the full term for which he was elected.
Q: Congressman X figured in a car accident which caused
House of Representatives his death. He was serving for 2 years when he died. The
Congress decided to conduct special elections to fill up the
Q: What is the total composition of the House of Representatives? vacancy which Congressman X left. As a result, Y was
A: Article VI, Section 5 of the 1987 Constitution provides that elected. For how long can Y serve?
it shall be composed of not more than 250 members, unless A: Y can only serve for the unexpired term of Congressman X.'
otherwise provided by law.
Q: Valentina, a registered voter in Marinduque filed a
Q: What are the qualifications of a member of the House of Petition to Deny Due Course or to cancel Narda's certificate
Representatives as provided for under the 1987 Constitution? of candidacy on the ground that Narda is a holder of US
A: Article VI, Section 6 of the 1987 Constitution provides the passport and a permanent resident of the United States.
following qualifications for one to be a candidate for, elected to, After conducting its investigation, the COMELEC cancelled
and be a member of the House of Representative: Narda's COC due to the latter's failure to comply with the
requirements of Republic Act (R.A.) No. 9225 or the Citizenship
1. Natural born citizen; Retention and Re-acquisition Act of 2003, namely: (1) to take
an oath of allegiance to the Republic of the Philippines; and
2. At least 25 years of age on the day of election; (2) to make a personal and sworn renunciation of her
3. Able to read and write; American citizenship before any public officer authorized to

271 Social Justice Society v. Dangerous Drugs Board, G.R 157870, 03 November 2008. 272 CONST., Art. VI, Sec. 9.
90 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 91
ON POLITICAL LAW

administer an oath. Aggrieved, Narda filed a Petition for As to the second contention, a Filipino citizen who becomes
Certiorari before the Court arguing that: naturalized elsewhere effectively abandons his domicile of
origin. Upon re-acquisition of Filipino citizenship pursuant to
1. She is a natural-born Filipino citizen and that she has R.A. No. 9225, he must still show that he chose to establish his
not lost such status by simply obtaining and using an domicile in the Philippines through positive acts, and the period
American passport; of his residency shall be counted from the time he made it his
2. Since she never became a naturalized citizen, she domicile of choice. In this case, there is no showing whatsoever
never lost her domicile of origin, which is Boac, that Narda had already re-acquired her Filipino citizenship
Marinduque; and pursuant to R.A. No. 9225 to conclude that she has regained her
domicile in the Philippines. There being no proof that Narda had
3. Assuming without conceding that she has lost her renounced her American citizenship, it follows that she has not
status as a natural-born citizen, she took her oath of abandoned her domicile of choice in the USA. No amount of her
allegiance in connection with her appointment as stay in the said locality can substitute the fact that she has not
Provincial Administrator of Marinduque, she is abandoned her domicile of choice in the USA.
deemed to have reacquired her status as a natural-
born Filipino citizen. As to the third contention, Narda's oath of office as Provincial
Administrator cannot be considered as the oath of allegiance in
Is Narda correct? Decide with reasons. compliance with R.A. No. 9225.2'
A: Narda is not correct. Q: Does a province need to have at least 250,000 residents to
As to the first contention, Valentina was able to sufficiently be entitled to one representative?
prove that Narda is a holder of US passport and a permanent US A: No. Article VI, Section 5(3) of the 1987 Constitution only
resident. At this point, the burden of proof shifted to Narda, provides that "[e]ach city with a population of at least two
imposing upon her the duty to prove that she is a natural-born hundred fifty thousand, or each province, shall have at least one
Filipino citizen and has not lost the same, or that she has representative." The population requirement only applies to
reacquired such status in accordance with the provisions of R.A. cities. A province, irrespective of population, is automatically
No. 9225. Aside from the bare allegation that she is a natural- entitled to one representative.
born citizen, however, Narda submitted no proof to support such
contention. To be sure, for Narda to reacquire her Filipino Q: Does a city need to increase its population to another
citizenship and become eligible for public office, the law 250,000 residents to be entitled to an additional district?
requires that she must have accomplished the following acts: (1)
take the oath of allegiance to the Republic of the Philippines A: No. While Article VI, Section 5(3) of the 1987 Constitution
before the Consul-General of the Philippine Consulate in the requires a city to have a minimum population of 250,000 to be entitled
USA; and (2) make a personal and sworn renunciation of her
American citizenship before any public officer authorized to
administer an oath. She did not comply with any of the foregoing.

273 Reyes v. COMELEC, G.R. No. 207264, 25 June 2013.

92 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 93
ON POLITICAL LAW

to a representative, it does not have to increase its population by 1. Natural born citizen;
another 250,000 to be entitled to an additional district.'
2. Registered voter;
Q: Can the Congress empower the ARIVILVI Regional Assembly
3. Resident of the Philippines for a period of not less than
to create a representative district?
one year immediately preceding the day of the election;
A: No. Article VI, Section 5(1) of the 1987 Constitution
4. Able to read and write;
exclusively vests in Congress the power to increase, through a
law, the allowable membership in the House of Representatives. 5. A bona fide member of the party he seeks to represent
Section 5(4) empowers Congress to reapportion legislative districts. for at least ninety (90) days preceding election day; and
The power to reapportion legislative districts necessarily includes
the power to create legislative districts out of existing ones. The 6. At least twenty-five (25) years of age on election day. In
allowable membership of the House of Representatives can be the case of the youth sector, he must be at least twenty-
increased, and new legislative districts of Congress can be five (25) but not more than thirty (30) years of age on
created, only through a national law passed by Congress. To the day of the election. Any youth sectoral representative
allow the ARNIM Regional Assembly to create a national office who attains the age of thirty (30) during his term shall be
is to allow its legislative powers to operate outside the ARMNI's allowed to continue in office until the expiration of
territorial jurisdiction.' his term.2"

Q: What is "gerrymandering"? Is it allowed under the Q: Can major political parties participate in the party-list
Constitution? elections?

A: Gerrymandering is the act of forming one legislative district A: Yes. The framers of the 1987 Constitution intended the
out of separate territories for the purpose of favoring a candidate party-list system to include not only sectoral parties but also non-
or a political party.276 It is proscribed under our Constitution as sectoral parties. The sectoral parties shall constitute a part, but
can be gleaned in Article VI, Section 5(3) of the 1987 Constitution not the entirety, of the party-list system. As explained by
which mandates that "each legislative district shall comprise, as Commissioner Wilfredo Villacorta, political parties can participate
far as practicable, contiguous, compact and adjacent territory." in the party-list system "[for as long as they field candidates
who come from the different marginalized sectors that we shall
Party-List System designate in this Constitution."278

Q: What are the qualifications of a party-list nominee? Q: Is it necessary for a party-list nominee to actually belong
to the marginalized sector that he seeks to represent?
A: The following qualifications must be satisfied before one can
become a party-list nominee: A: No. A nominee who does not actually possess the
marginalized and underrepresented status represented by the

274 Mariano Jr. v. COMELEC, G.R. No. 118577, 07 March 1995.

275 Sema v. COMELEC, G.R. No. 177597, 16 July 2008. 277 R.A. No. 7941, Party-List System Act, Sec. 9.
276 Navarro v. Executive Secretary, G.R. No. 180050, 10 February 2010. 278 Atong Paglaum v. COMELEC, G.R. No. 203766, 02 April 2013.
94 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 95
ON POLITICAL LAW

party-list group but proves to be a genuine advocate of the of party-list representatives by law, it must still yield to the
interest and concern of the marginalized and underrepresented general limitations on legislation and the specific limitations on
sector represented is still qualified to be a nominee. Since party-list organizations under the Constitution, particularly the
political parties are identified by their ideology or platform of equal protection clause. As such, the assailed provisions must be
government, bona fide membership, in accordance with the examined under the rational basis test in order to determine
political party's constitution and by-laws, would suffice.' whether there is a legitimate government interest and a reasonable
connection between it and the methods used to achieve it.
Q: Mindy and Maura were both selected as nominees of Unfortunately, such is not present in this case as there is no
their respective party-lists for the 2022 elections, having met substantial distinction between candidates who lost in the
the basic qualifications as provided under the Constitution as immediately preceding election and those who won, or did not
well as relevant laws (i.e., citizenship, age, residency, and participate therein, on the other. As such, the assailed provisions
literacy requirements). Despite their selection as respective of the law are violative of the equal protection clause. All told, a
nominees, they were hampered by the restrictions imposed losing candidate in the immediately preceding election can be
by Section 8 of R.A. 7941 and Sections 5 (d) and 10 of nominated and be voted as a party-list representative.280
COMELEC Resolution No. 10717 which prohibit defeated
candidates in the preceding election (2019 elections) from Q: What are the four inviolable parameters to determine
being nominated by their respective party-lists. This winners in the party-list elections?
prompted Mindy and Maura to assail the constitutionality of
A: The four-inviolable parameters in determining winners in
the said prohibition, arguing that the Congress cannot prescribe
party-list elections are as follows:
additional qualifications other than those that are provided
under Article VI, Section 6 of the 1987 Constitution. On the 1. 20% allocation. The combined number of all party-list
other hand, the Office of the Solicitor General avers that the representatives shall not exceed 20% of the total
Congress merely acted in compliance with and by the express membership of the House of Representatives, including
wording of Article VI, Section 5(1) of the 1987 Constitution those elected under the party-list.
which gives the Congress the power to determine, by law, the
qualifications of the party-list representatives. Can a losing 2. 2% threshold. Only those parties garnering a minimum
candidate for any elective position in the immediately of 2% of the total valid votes cast for the party-list
preceding election be included in the list of nominees and system are qualified to have a seat in the House of
consequently be voted as a party-list representative? Representatives.

A: Yes. A losing candidate for any elective position in the 3. Three-seat limit. Each qualified party, regardless of the
immediately preceding election can be included in the list of number of votes it actually obtained, is entitled to a
nominees and may also be voted as a party-list representative. maximum of three seats; that is, one "qualifying" and
While it is true that the Congress has the power to prescribe the two additional seats.
mechanics of the party-list system and to provide for qualifications

279
Id. 28° Albano v. COMELEC, G.R. No. 257610, 24 January 2023
96 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 97
ON POLITICAL LAW

4. Proportional representation. The additional seats which a The claim of SILENT MAJORITY PH that SUNOG BAGA is
qualified party is entitled to shall be computed "in not entitled to participate in the party-list elections because it
proportion to their total number of votes."281 does not represent any marginalized and underrepresented
sectors of society is not correct. It is enough that its principal
Q: SUNOG BAGA is an ideology-based political party advocacy pertains to the special interest of its sector.284
fighting for environmental causes. It decided to participate
under the party-list system. When the election results came Q: Rudy Domingo, 38 years old, natural-born Filipino and a
in, it only obtained 1.99 % of the votes cast under the party- resident of the Philippines since birth, is a Manila-based
list system. entrepreneur who runs KABAKA, a coalition of peoples'
organizations from fisherfolk communities. KABAKA's operations
SILENT MAJORITY PH, a political blogger, claimed that consist of empowering fisherfolk leaders through livelihood
SUNOG BAGA is not entitled to any seat since it failed to projects and trainings on good governance. The Dutch
obtain at least 2% of the votes. Moreover, since it does not Foundation for Global Initiatives, a private organization
represent any of the marginalized and underrepresented registered in The Netherlands, receives a huge subsidy from
sectors of society, SUNOG BAGA is not entitled to participate the Dutch Foreign Ministry, which, in turn is allocated
under the party-list system. worldwide to the Foundation's partners like KABAKA. Rudy
seeks to register KABAKA as a party-list with himself as a
How valid are the observations of SILENT MAJORITY PH?
Explain.282 nominee of the coalition. Will KABAKA and Rudy be
qualified as a party-list and a nominee, respectively? Decide
A: The claim of SILENT MAJORITY PH that SUNOG BAGA with reasons."'
is not entitled to a seat under the party-list-system because it
A: KABAKA and Ruby are not qualified as a party list and as
only obtained 1.99% of the votes cast under the party-list-system
nominee, respectively, since KABAKA is receiving a subsidy
is not correct. Since the provision in Section 5(2), Article VI of
from the Dutch Foreign Ministry. Under Article IX-C, Section
the Constitution that the party-list representatives shall constitute
2(5) of the 1987 Constitution, a political party which is
twenty percent (20%) of the total number of the members of the
supported by any foreign government cannot be registered with
House of Representatives is mandatory, after the parties
the Commission on Elections.
receiving at least two percent (2%) of the total votes case for the
party-list system have been allocated one seat, the remaining 2. Privileges and Inhibitions (1987 CONST., Art. VI, Secs.
seats should be allocated among the parties by the proportional 10, 11, and 13-14)
percentage of the votes received by each party as against the
total party-list votes.' Q: A Senator or Member of the House of Representatives
shall be privileged from arrest while Congress is in session for all
offenses punishable by imprisonment of not more than:286

281 Veterans Federation Party v. COMELEC, G.R. No.136781, 06 October 2000.

282 BAR 2014. 284 Atong Paglaum v. COMELEC, G.R. No. 203766, 02 April 2013.
285
283 Barangay Association for National Advancement and Transparency v. COMELEC, BAR 2009.
G.R. No. 179271, 21 April 2009. 286 BAR 2012.
98 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 99
ON POLITICAL LAW

A: 6 years imprisonment."' A: No. Parliamentary non-accountability cannot be invoked when

the lawmaker's speech or utterance is made outside sessions,
Q: May a congressman convicted of rape be allowed to hearings, or debates in Congress, extraneous to the "due functioning
attend session in Congress pending his appeal? of the legislative process." The immunity only extends on
A: No. To allow the convicted congressman to attend legislative speeches, and debates on either House as well as to other matters
sessions would constitute an unjustified broadening of the which are integral in the deliberative and communicative
privilege from arrest bestowed by the Constitution upon processesby which Members participate in committee and House
members of Congress. The trial court's judgment of conviction proceedings with respect to the consideration and passage or
imports that the evidence of guilt of the crime charged is strong. rejection of proposed legislation or with respect to other matters
Unquestionably, the continued incarceration of the congressman which the Constitution places within the jurisdiction of either
is a valid and constitutionally mandated curtailment of his rights House. A lawmaker's participation in media interviews is not a
to provisional liberty pending appeal of his conviction?" legislative act, but is "political in nature," outside the ambit of
the immunity conferred under the Speech or Debate Clause in
Q: What is the parliamentary privilege of speech? the 1987 Constitution?"

A: No Member shall be questioned nor be held liable in any Q: Can a senator-lawyer be disbarred or disciplined by the
other place for any speech or debate in the Congress or in any Supreme Court for statements made during a privilege speech?
committee thereof."'
A: No. The Constitution states that no senator or member of the
Q: During a break in the Senate hearing concerning the House of Representatives shall be questioned nor be held liable
overpriced Makati City Hall Parking Building, Senator Tony in any other place for any speech or debate in the Congress or in
granted a media interview with the members of the press. any committee thereof. The privilege speech is not actionable
When asked about the proceedings, Senator Tony expressed criminally or in a disciplinary proceeding under the Rules of
his opinion that Mr. Ryan Smith, a prominent businessman, Court. This parliamentary non-accountability granted to the
acted as a dummy for the actual and beneficial owner of the members of Congress is not to protect them against prosecutions
estate, Vice President Daniel. This prompted Mr. Smith to for their own benefit, but to enable them, as the people's
file a complaint for damages against Senator Tony on the representatives, to perform the functions of their office without
basis that the defamatory statements made against him fear of being made responsible before the courts or other forums
caused substantial loss in his business. Senator Tony filed a outside the congressional hall.'
motion to dismiss on the basis that his statements are covered
Q: Dante was elected as the Chairman of the Philippine
by his parliamentary immunity under Art. VI, Sec. 11 of the
National Red Cross (PNRC) during his incumbency as a
Constitution. Does the parliamentary immunity extend to
member of the Senate. This prompted Leticia, Ronaldo, and
statements made during media interviews at the Senate?
Salvacion to file a petition before the Supreme Court to
declare Dante as having forfeited his seat in the Senate. They
287CONST., Art. VI, Sec. 11.
288People v. Romeo „Ialosjos, G.R. No. 132875-76, 03 February 2000. [Concurring
Gonzaga-Reyes, J] 290 Trillanes IV v, Castillo-Marigomen, G.R. No. 223451, 14 March 2018.
69
CONST., Art. VI, Sec. 11. 291 Pobre v. Sen. Defensor-Santiago, A.C. No. 7399, 25 August 2009.
100 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 101
ON POLITICAL LAW

allege that by accepting the chairmanship of the PNRC Q: What are the prohibitions on a member of Congress
Board of Governors, respondent has ceased to be a member 293
relative to the practice of his profession?
of the Senate as provided in Article VI, Section 13 of the 1987
Constitution, which reads: A: Members of the Congress are prohibited from engaging in
the following as provided in Article VI, Section 14 of the 1987
"SEC. 13. No Senator or Member of the House of Representatives Constitution:
may hold any other office or employment in the Government,
or any subdivision, agency, or instrumentality thereof, 1. Appearing as counsel before any court, tribunal, quasi-
including government-owned or controlled corporations or judicial and other administrative bodies;
their subsidiaries, during his term without forfeiting his seat. 2. Be interested financially, whether directly or indirectly,
(•••)" in any contract with, or in any franchise or special
Is PNRC considered a government office or GOCC for the privilege granted by the Government or GOCC during
purpose of prohibition in Article VI, Section 13 of the 1987 his term; and
Constitution? 3. Intervening in any matter before any office of the
A: No. The PNRC is not a government office nor a GOCC for government for his pecuniary benefit or where he may
the purposes of the prohibition in Article VI, Section 13 of the be called upon to act on account of his office.
1987 Constitution. The PNRC does not have government assets Q: Differentiate incompatible office from forbidden office.
and does not receive any appropriation from the Philippine
Congress. It is financed primarily by contributions from private A: Incompatible office pertains to the prohibition for a member
individuals and private entities obtained through solicitation campaigns of the Congress to hold any other office or employment in the
organized by its Board of Governors. The State also does not government or in any GOCC. This prohibition is not absolute but
own nor exercise control over the PNRC. A government-owned is only limited to the simultaneous holding of that seat and the
or controlled corporation must be owned by the government, and seat in Congress. A violation of this prohibition will result to the
in the case of a stock corporation, at least a majority of its capital forfeiture of the seat of the official concerned. On the other hand,
stock must be owned by the government. Thus, the PNRC is a forbidden office absolutely proscribes the members of the
privately owned, privately funded, and privately run charitable Congress from accepting any appointment to any office which
organization and is not covered by the aforesaid prohibition.' may have been created or the emoluments thereof increased
during the term for which they were elected. This prohibition
still applies even though the member of the Congress is willing
to forfeit his or her seat.'

293 Joaquin Bernas, S.J., The 1987 Philippine Constitution: A Comprehensive Reviewer,
235 (2011 ed.).
292 Liban v. Gordon, G.R. No. 175352, 15 July 2009. 294 CONST., Art. VI, Sec. 13; See Adaza v. Pacana, G.R. No. L-68159, 18 March 1985.
102 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 103
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3. Quorum and Voting Majorities, and Discipline of Members 6. To break a tie in a presidential election
(1987 CONST., Art. VI, Sec. 16)
A: Majority of all the members of both Houses, voting
Q: What constitutes a quorum to do business? separately.301

A: Majority of each House shall constitute a quorum to do Discipline of Members

business, but a smaller number may adjourn from day to day.295
Q: What is the required number of votes for the suspension
Q: What and whose vote are required for the following acts: or expulsion of a member?
1. The grant of tax exemption A: 2/3 of all the members of the House concerned.'
A: Majority of all the members of the Congress.296 Q: For how long can the Congress suspend one of its
members pursuant to its power of discipline?
2. Override President's veto
A: Art. VI, Sec. 16(3) of the 1987 Constitution provides that a
A: 2/3 of All in the House of Origin.297
penalty of suspension shall not exceed 60 days.
3. Confirmation of a new vice president (from among
the members of the Senate and House of Representatives) Q: Congressman De Guzman was linked in the brutal
as nominated by the President to fill up a vacancy in murder of one governor in Negros. Citing threats to his and
the Office of the Vice President. that of his family's life, Congressman De Guzman refused to
attend any of the congressional investigation on the said
A: Majority of both Houses, voting separately.298 matter. As such, the members of the House decided to vote
on his explusion, with 265 supporting his removal from the
4. Determination that the President is unable to discharge Congress. Is the action of the members of the Congress in
powers and duties removing Congressman De Guzman valid?
A: 2/3 of both Houses, voting separately.299 A: Yes. Article VI, Section 16(3) of the 1987 Constitution
5. Election of Officers sanctions the explusion of a member of the Congress, provided
that such action is supported by the concurrence of two-thirds of
A: Majority of all its respective members.' all its Members. In this case, it was alleged that Congressman De
Guzman violated several rules of the House which prompted
more than 2/3 of the members of the Congress to expel him.

295 CONST., Art. VI, Sec. 16(2).

296 CONST., Art. VI, Sec. 28(4).
297 CONST., Art. VI, Sec. 27(1).
298 CONST., Art. VII, Sec. 9.
299 CONST., Art. VII, Sec. 11. 3°1 CONST., Art. VII, Sec. 4.
309
CONST., Art. VI, Sec. 16(1). 302 CONST., Art. VI, Sec. 16(3).
104 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 105
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B. Law-Making Process (1987 CONST., Art. VI, Secs. 26-27) Q: Article VI, Section 26(2) of the 1987 Constitution provides
that no bill passed by either House of Congress shall become
Q: What is the Enrolled Bill Doctrine?
a law unless it has passed three readings on separate days
A: The signing of a bill by the Speaker of the House and the and printed copies of it in its final form have been distributed to
President of the Senate and its certification by the secretaries of the Members of the House three days before its passage. Is
both Houses of Congress that such bill was passed are conclusive there an exception to the provision? Explain your answer."'
of its due enactment."' A: Yes. The phrase "except when the President certifies to the
necessity of its immediate enactment, etc." in Article VI, Section
Q: If there is a conflict between the journal entry and
26(2) of the 1987 Constitution qualifies the two stated conditions
enrolled bill, which shall prevail?
before a bill can become a law: (i) the bill has passed three
A: The enrolled bill prevails in the event of any discrepancy readings on separate days and (ii) it has been printed in its final
except with respect to matters that the Constitution requires to be form and distributed three days before it is finally approved.
entered in the journals. Well-settled is the rule that an enrolled Hence, upon the certification of a bill by the President, the
copy of a bill is conclusive not only of its provisions but also of requirement of three readings on separate days and of printing
its due enactment.'" and distribution can be dispensed with.310

Q: What are the matters mandated by the Constitution to be Q: The requirement that "every bill shall embrace only one
entered into the Journal? subject which shall be expressed in the title thereof' prevents:

A: The following matters are mandated by the Constitution to (a) rollercoaster legislation.
be entered into the Journal
(b) log-rolling legislation.
1. Yeas and nays on the third and final reading of a bill;305
(c) rolling fields legislation.
2. Veto message of the President;'"
(d) loggerhead legislation."'
3. Yeas and nays on re-passing a bill vetoed by the President"'
A: (b) Log-rolling or hodge podge legislation, which refers to
4. Yeas and nays on any question at the request of 1/5 of the practice of including in the same bill wholly unrelated provisions,
the members present.'" with the view of combining in favor of the bill the supporters of
each, and thus securing the passage of several measures.'

3°3 Arroyo v. De Venecia, G.R. No. 127255, 14 August 1997.

304 Tolentino v.
Secretary of Finance, G.R. No. 115455, 25 August 1994. 309 BAR 2017.
305 CONST., Art. 115455, 25 August 1994.
VI, Sec. 26 (2). 310 Tolentino v. Secretary of Finance, G.R. No.
306 CONST., Art. VI, Sec. 27 (1). 3" BAR 2012.
3°7 Id 312 Government of the Philippine Islands v. The Hongkong Shanghai Banking Corporation,
3°8 CONST., Art VI, Sec. 16 (4). G.R. No. L-44257, 22 November 1938.
106 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 107
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Function of the Bicameral Conference Committee Q: In the 2013 case of Belgica v. Ochoa, the Court invalidated
lump-sum appropriations which were treated as a funding
Q: What is the extent of the power of the Bicameral source for multiple unrelated purposes. The year after,
Conference Committee? Belgica filed another petition to assail the constitutionality of
A: It is a mechanism for compromising differences between the the "lump-sum discretionary funds" in the 2014 GAA on the
premise that the Court declared lump-sum appropriations as
Senate and the House. To reconcile or harmonize disagreeing
unconstitutional per se. Is Belgica correct in his contention?
provisions, the Bicameral Conference Committee may (a) adopt
the specific provisions of either the House bill or Senate bill, (b) Rule with reason.
decide that neither provision in the House bill or the provisions A: No, Belgica is not correct. Lump-sum appropriations are
in the Senate bill would be carried into the final form of the bill, only constitutionally infirm when they are used to provide for a
and/or (c) try to arrive at a compromise between the disagreeing singular lump-sum amount to be tapped as a source of funding
provisions. It also has the power to include in its report an for multiple purposes. This is because it will violate the veto
entirely new provision that is not found either in the House bill power of the President who would then be faced with the
or in the Senate bill.'" predicament of either vetoing the entire appropriation if he finds
some of its purposes wasteful or undesirable or approving the
Limitations on Legislative Power entire appropriation so as not to hinder some of its legitimate
purposes. However, if the lump-sum appropriation contains a
Q: If by the end of any fiscal year, the Congress shall have
singular correspondence and state a specific amount for a specific
failed to pass the general appropriations bill for the ensuring
and related purpose/s, then it can be considered as a valid
fiscal year, the general appropriations law for the preceding
fiscal year shall be deemed:
(a) referred. Q: Congress passed a bill appropriating P50 million in
assistance to locally based television stations subject to the
(b) unacted. condition that the amount would be available only in places
where commercial national television stations do not operate.
(c) refilled.
The President approved the appropriation but vetoed the
(d) re-enacted.314 condition. Was the veto valid?

A: (d) It shall be deemed re-enacted and shall remain in force (a) Yes, since the vetoed condition may be separated
and effect until the general appropriations bill is passed by the from the item.
Congress.315
(b) Yes, the President's veto power is absolute.
(c) No, since the veto amounted to a suppression of the
freedom to communicate through television.
313 ABAKADA Guro Party List v. Hon. Cesar Purisima, G.R. No. 166715, 14
August 2008; Tolentino v. Secretary of Finance, G.R. No. 115455, 25 August 1994.
314 BAR 2012.

315 CONST., Art. VI, Sec. 25(7). 316 BAR 2011. Belgica v. Executive Secretary, G.R. No. 210503, 08 October 2019.
108 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 109
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(d) No, since the approval of the item carried with it the Q: TRUE OR FALSE. The power of subordinate legislation
approval of the condition attached to it.317 entails the absolute transmission of legislative powers to
administrative agencies.
A: (d) No, since the approval of the item carried with it the
approval of the condition attached to it.318 A: False. The power of subordinate legislation does not mean
the absolute transmission of legislative powers to administrative
Q: As a general rule, the President has to veto the entire bill agencies. A valid delegation of legislative powers must first
andnot merely the parts thereof. What are the exceptions to comply with the completeness test and the sufficient standard
this rule? test. The law is complete when it sets the policy to be executed
A: The President may veto any particular item or items in the leaving nothing to the delegate except to implement it. On the
following: (A-R-T) other hand, the law lays down a sufficient standard when it
provides adequate guidelines or limitations to determine the
1. Appropriations; boundaries of the delegate's authority and prevent the delegation
from running riot.322
2. Revenue; or
Q: Republic Act No. 10029 of the Philippine Psychology Act
3. Tariff bill.'
of 2009 makes it a condition for aspiring psychologists to
Q: Explain the doctrine of inappropriate provision. pass a licensure examination before they can practice
psychology in the Philippines. However, Sec. 16 of the said
A: Congress cannot by law establish conditions for and regulate law exempts certain individuals from such requirement
the exercise of powers of the President given by the Constitution provided they have accumulated a minimum of ten (10) years
for that would be an unconstitutional intrusion into executive of work experience in the practice of psychology as a
prerogative. As such, when the legislature inserts inappropriate psychologist and have updated their professional education
provisions in a general appropriation bill, such provisions must in various psychology-related functions. Pursuant to this, the
be treated as "items" for purposes of the President's item veto Professional Regulatory Board of Psychology (BOP) of the
power over general appropriation bills.' Professional Regulation Commission (PRC) approved the
law's IRR which included as a requirement for exception a
Q: What is "executive impoundment"? minimum of 10 years work experience as a psychologists as
A: Impoundment refers to a refusal by the President, for well as attending atleast 100 hours of workshops and training
whatever reason, to spend funds made available by Congress. It programs. This prompted Florentina to file a petition before
is the failure to spend or obligate budget authority of any type.' the Court of Appeals questioning the constitutionality of the
IRR for being onerous and discriminatory. In support of her
petition, Florentina claims that the requirement of 100 hours
of updating workshops and training programs is an additional
317 BAR 2011.
318 Gonzales v. Macon* Jr., G.R. No. 87636. 19 November 1990.
319 CONST., Art. VI, Sec. 27(2).
3213 Philippine COnSalliliOllAssociation (PHILCONSA) v. Enriquez, G.R. No. 113105, 19
August 1994. 322Sobrejuanite-Flores v. Pilando Jr., G.R. No. 251816, 23 November 2021, penned
321 Id. by Lopez, J.
110 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 111
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condition not found in the law itself, hence unconstitutional. 2. It must be supported by funds actually available as
Under the facts of the case, is the IRR constitutional? certified by the National Treasurer, or to be raised by a
corresponding revenue proposal therein.
A. Yes, the IRR is constitutional considering that the promulgation
of the IRR is a valid exercise of subordinate legislation, having Q: The President decided not to release the funds authorized
passed both the completeness test and the sufficient standard test. under the General Appropriations Act for the construction
In this case, the clear legislative intent of the law is to regulate of a new bridge in Iloilo City because of the persistent reports of
the practice of psychology and to protect the public from widespread irregularities and shenanigans involving the
incompetent individuals offering psychological services. Moreover, alleged ghost projects with which the pork barrel funds of
the use of the phrases, "minimum of ten (10) years of work members of Congress had been associated.
experience in the practice of psychology as a psychologist" and
"updated their professional education in various psychology- The President explained that such a project, which he thought
related functions" does not render the law incomplete nor grant was unnecessary since there was an old bridge nearby that
the PRC and the BPO a wide latitude of discretion. It must be was still functional, should be abandoned in order to properly
remembered that the standards set for subordinate legislation in conserve and preserve the limited funds of the government
the exercise of the administrative bodies' rule making authority and to prevent further public mistrust. He subsequently
are necessarily broad and highly abstract, which can be expressed or designated the funds as "savings" and utilized them to construct
implied. In this case, the declared policy of the law and the body a drug recovery center in Caloocan City.
of the statute complied with the requirements of valid delegation
of legislative power. The guidelines for persons seeking to Does the President have such authority? Explain.
practice psychology are infused with the public interest. As such, A: No. The President does not have such authority. This
the IRR imposing the additional requirement is constitutional.' violates Article VI, Section 25(5) of the 1987 Constitution which
states that, "[n]o law shall be passed authorizing any transfer of
C. Appropriation (1987 CONST., Art. VI, Secs. 24-25 and 29) appropriations; however, the President, the President of the
Q: What are the limitations imposed by the Constitution in Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the heads of Constitutional
relation to special appropriation measures?
Commissions, may, by law, be authorized to augment any item
A: Under Article VI, Section 25(4) of the 1987 Constitution, a in the general appropriations law for their respective offices from
special appropriation measure must comply with the following savings in other items of their respective appropriations."
requirements: However, such authority of the President does not carry with it
the absolute discretion to transfer funds from one department or
1. It must contain the purpose for which it is intended; and one activity to another, such as in this case.
As ruled in Sanchez v. COA,324 the President cannot indiscriminately
transfer funds from one department, bureau, office or agency of
the Executive Department to any program, project or activity of

323 Sobrejuanite-Flores v. Pilando Jr., G.R.No. 251816, 23 November 2021, penned

by Lopez, J. 324 G.R. No. 127545, 23 April 2008.
112 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 113
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any department, bureau or office included in the General 3. The purpose of the transfer is to augment an item in the
Appropriations Act or approved after its enactment, without general appropriations law for their respective offices.325
regard to whether the funds to be transferred are actually savings
in the item from which the same are to be taken, or whether or Applying the following to the case at bar would reveal that the
not the transfer is for the purpose of augmenting the item to third requirement is wanting in this case. NCIP admitted themselves
which the transfer is to be made. that the Human Resource Development Fund which was included
in their budget for FY 2012 was disallowed by the DBM. Sans
Q: Under a Resolution, the Board of Trustees of NCIP the DBM approval, it is just a mere proposal to which no
entered into a Memorandum of Agreement with ADMU for augmentation from the savings can be made. There can be no
the admission of 2 NCIP officials and employees in the augmentation from the savings for an item or project that was
latter's master's in public management. For this purpose, the not included in the approved budget of the agency.'
NCIP Board realigned some of its unutilized 2011 budget.
However, this was disallowed by the COA on the ground that Q: The DOTC is the primary government entity tasked to
the NCIP scholarship program did not form part of the 2012 regulate dependable transportation services in the country.
Budget of the said agency hence it may not be legally funded One of its line agencies is the LTO which oversees the
by augmentation from reprogrammed funds. For its part, the registration of motor vehicles as well as the preparation and
Board contends that it included in their proposed budget for issuance of motor vehicle number plates. Pursuant to its
2012 Human Resource Development for its officers but the mandate, it implemented the Motor Vehicle License Plate
same was disallowed by the Department of Budget and Standardization Program (MVPSP) which aimed to standardize
Management (DBM) because it was outside NCIP's priority the design of the license plates here in the country. To
projects. Can the scholarship program be funded by augmented effectuate this, the DOTC allocated 3 billion from its Motor
funds from unutilized 2011 budget? Vehicle Registration and Driver's Licensing Regulatory Services
under the 2014 GAA to this project. Congressman Harry and
A: No. Pursuant to Article VI, Section 25(5) of the 1987 Danny assailedthe said allocation, arguing that the transfer
Constitution, a valid transfer of appropriated funds requires the of the appropriation is unconstitutional since the MVPSP did
concurrence of the following conditions: not appear as an item in the 2014 National Expenditure
Program and 2014 GAA. Is it constitutional to use the funds
1. There is a law authorizing the President, the President of
from 2014 GAA to implement the MVPSP?
the Senate, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, and the heads of A: Yes, the use of the funds is constitutional despite the absence
the Constitutional Commissions to transfer funds within of the specific mention of the project in the GAA. To be valid,
their respective offices. an appropriation must indicate a specific amount and a specific
purpose. However, the purpose may be specific even if it is
2. The funds to be transferred are savings generated from
broken down into different related sub-categories of the same
the appropriations for their respective offices; and nature. In this case, the appropriation for motor vehicle registration

325 Id.; Araullo v. Aquino, G.R. No. 209287, 01 July 2014.

326 Bilibli v. COA, G.R. No. 231871, 06 July 2021.
 114 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 115
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naturally and logically included platemaking inasmuch as platemaking Q: What are the two kinds of legislative hearings as
was an integral component of the registration process."' provided by the Constitution?

Q: Explain the rule on singular correspondence in relation A: The 1987 Constitution contains two provisions pertaining to
to requisites for a valid appropriation. legislative hearings. The first one is contained in Article VI,
Section 21 of the 1987 Constitution or the legislative inquiries in
A: "Singular correspondence" means a specified singular amount aid of legislation. Such investigations may refer to the implementation
for specified singular purpose, otherwise known as a "line-item". or re-examination of any law or in connection with any proposed
This is consistent with the definition of specific appropriation of legislation or formulation of future legislation. This may also
money and ensures that the President may discernably veto the cover any and all matters vested by the 1987 Constitution in the
same. An appropriation may be apportioned into component Congress. The second one pertains to the legislative inquiry as
percentages or values, it may even have several related purposes elucidated in Article VI, Section 22 of the 1987 Constitution.
that are by accounting and budgeting practice considered as one The objective of the "question hour" is to obtain information in
purpose. In cases like this, the related purposes shall be deemed the exercise of the oversight power of the Congress."'
sufficiently specific for the exercise of the President's item
veto power."' Q: Is attendance mandatory in legislative hearings?

Q: What is a rider in a general appropriation bill? A: While attendance is meant to be discretionary in the question
332
hour, it is compulsory in inquiries in aid of legislation.
A: A rider is a provision not germane to the subject matter of
the bill. In an appropriation bill, it pertains to a non-appropriation Q: Who are the government officials exempted from the
item inserted in an appropriation measure."9 power of the Congress to conduct inquiry?

D. Legislative Inquiries and Oversight Functions (1987 A: The following officials are exempted from the Congress'
CONST., Art.VI, Secs. 21-22) power of inquiry:

Q: What is the informing power of the Congress? 1. President."'

A: The informing power of the Congress includes its power to 2. Members of the Supreme Court'
conduct legislative inquiries and its oversight power to ensure 3. Military Officers, except when ordered by the Court.'
that the laws are faithfully executed.'"

°' Id.
327 Dela Cruz v. Ochoa Jr., G.R. No. 219683, 23 January 2018. 332 Senate of the Philippines v. Ermita, G.R. No. 169777, 20 April 2006.
328 Belgica v. Ochoa, G.R. No. 208566, 19 November 2013. 3" Id.
329 Garcia v. Mala, G.R. No. L-33713, 30 July 1975. 334 Id.
330 See CONST., Art. VI, Secs. 21 and 22. 335 Gudani v. Senga, G.R. No. 170165, 15 August 2006.
116 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 117
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Q: What are the limitations on the power of the Congress to hearing, but they may invoke the privilege when a question
conduct legislative investigation? calling for an incriminating answer is propounded.'
A: The power of the Congress to conduct legislative investigations must: Q: What is the scope of the oversight power of the Congress?
1. Be in aid of legislation; A: Congress' oversight powers includes all activities done by
2. In accordance with duly published rules of procedure; and the Congress to enhance its understanding of and influence over
the implementation of the legislation it has enacted. This power
3. Respect the rights of persons appearing in or affected by includes post-enactment measures usually undertaken by Congress
such inquiry.'36 to: (a) to monitor bureaucratic compliance with program objectives,
(b) to determine whether agencies are properly administered, (c)
Q: Indicate if the following statements are true or false. to eliminate executive waste and dishonesty, (d) to prevent
Write TRUE if the statement is correct and FALSE if not executive usurpation of legislative authority, and (e) to assess
then explain your answer."' executive conformity with the congressional perception of public
1. A pending criminal and or civil action before the interest. This power is intrinsic in the grant of legislative power
Court will bar a legislative inquiry involving the and is integral to the checks and balances inherent in a
democratic system of government.34°
same matter
A: FALSE. In the case of Standard Chartered v. Senate Q: What are the three (3) categories of congressional
Committee on Banks,338 the Court emphasized that the mere oversight functions?
filing of a criminal or civil case before a court or a quasi-judicial A: The acts done by Congress purportedly in the exercise of its
body should not automatically bar the conduct of legislative oversight powers may be divided into three categories, namely:
investigation. scrutiny, investigation, and supervision. Congressional scrutiny
2. Compelling individuals who are also respondents in implies a lesser intensity and continuity of attention to administrative
the criminal and civil cases in court to attend the operations. While congressional scrutiny is regarded as a passive
Senate hearings and to testify at the inquiry would process of looking at the facts that are readily available,
violate their constitutional right against self-incrimination. congressional investigation involves a more intense digging of
facts. The third and most encompassing form by which Congress
A: FALSE. The right against self-incrimination extends to all exercises its oversight power is through legislative supervision.
proceedings sanctioned by law that is like criminal proceedings. "Supervision" connotes a continuing and informed awareness on
Legislative inquiries do not partake the nature of or analogous to the part of a congressional committee regarding executive operations
criminal proceedings. Individuals who are summoned by the in a given administrative area. While both congressional scrutiny
Senate act as mere resource persons or as witnesses. As such, and investigation involve inquiry into past executive branch
they cannot altogether decline appearing before a legislative actions to influence future executive branch performance,

336 CONST., Art. VI, Sec. 21. 339 Standard Chartered v. Senate Committee on Banks, G.R. No. 167173, 27 December
337 BAR 2009. 2007.
338 G.R. No. 167173, 27 December 2007. 34° ABAKADA Guro Party List v. Purisitna, G.R. No. 166715, 14 August 2008.
 118 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 119
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congressional supervision allows Congress to scrutinize the exercise optional on the Senate of the succeeding Congress to take up such
of delegated law-making authority and permits Congress to retain unfinished matters, not in the same status, but as if presented for
part of that delegated authority. Congress exercises supervision the first time.'"
over the executive agencies through its veto power.341
Q: How long should Z be detained?
Q: X, a first-year law student at ABC University died due to
an alleged hazing conducted by DE Fraternity. Pursuant to A: Article VI, Section 21 of the 1987 Constitution mandates
this, Senator Y filed a Senate Resolution directing the that the rights of persons appearing in or affected by inquiries in
appropriate committee to investigate, in aid of legislation, and aid of legislation must be respected. As such, they cannot be
to hold those responsible accountable. A hearing was then detained for an indefinite period without due process of law. For
scheduled where Z, the President of DE Fraternity, together this reason, the period of imprisonment under the inherent power
with several others, were invited. Z did not attend the said of contempt by the Senate during inquiries in aid of legislation
hearing. As a result, the Senate issued a Subpoena Ad should only last until the termination of the legislative inquiry
Testificandum, directing Z to appear before the committee under which the said power is invoked. This legislative inquiry
and to testify as to the subject matter of the inquiry. Z then terminates on two instances:
attended the subsequent hearing but refused to answer the 1. Upon the approval or disapproval of the Committee
question as to whether he was the president of DE Fraternity Report; and
on the ground of right against self-incrimination. Due to his
insistent refusal to answer the said question, he was placed in 2. Upon the expiration of one Congress.'"
contempt and was subsequently detained. Z now assails the
legislative inquiry conducted, arguing that the same was not E. Declaration of Existence of State of War (1987 CONST.,
in aid of legislation but rather in aid of prosecution. However, Art. VI, Sec. 23)
before the case was decided by the Supreme Court, the
Q: Can the President declare the existence of war?
Senate terminated its inquiry and released Z from detention.
Explain the concept of the Senate as a "continuing body." A: No. Article VI, Section 23 (1) of the 1987 Constitution
expressly provides that it is the Congress, by a vote of two-thirds
A: The Senate as a "continuing body" does not entail perpetual
of both Houses in a joint session assembled, voting separately
existence but rather that on its day-to-day business, the Senate of
that have the sole power to declare the existence of war.
each Congress acts separately and independently of the Senate of
the Congress before it. It is continuing in a sense that it is not Q: When does the power granted to the President to effect a
dissolved as an entity with each national election or change in declared national policy in times of war of national
the composition of its member. This simply means that all emergency terminate?
pending matters and proceedings, such as unpassed bills and
even legislative investigations, of the Senate are considered A: Article VI, Section 23 (2) of the 1987 Constitution provides
terminated upon the expiration of that Congress and it is merely that such power granted to the President will terminate upon the

342 Balag v. Senate of the Philippines, G.R. No. 234608, 03 July 2018.
" I Id. 343 Id.
120 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 121
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next adjournment of the Congress, except when the same Q: Differentiate power of the Congress to revoke the
withdrawn sooner by them. proclamation from the Court's power to review.346

Q: What are the conditions that must be satisfied for the A: The power of the Congress to revoke the proclamation differs
Congress to validly delegate emergency powers to the President? from the Court's power to review in the following aspects:

A: As a general rule, the Congress is the repository of Power to Revoke Power of Review
emergency powers. However, knowing that that during grave
Exercised by Congress Courts
emergencies, it may not be possible or practicable for Congress
to meet and exercise its powers, the Framers of our Constitution Basis of Not only data available Only information and
deemed it wise to allow Congress to grant emergency powers to revocation prior to, but likewise data available to the
the President, subject to certain conditions namely: events supervening the President prior to or at
1. There must be a war or other emergency; declaration the time of declaration

2. The delegation must be for a limited period only; Standard Accuracy of factual Sufficiency of factual
basis basis
3. The delegation must be subject to such restrictions as the
Congress may prescribe; and Nature of Automatic — it may be Passive — it may only
power activated by Congress be exercised by filing
4. The emergency powers must be exercised to carry out a itself at any time after of a petition "in an
national policy declared by Congress.' the proclamation or appropriate
suspension was made proceeding" by a
F. Power to Revoke/Extend the Suspension of the Privilege citizen
of the Writ of Habeas Corpus and Declaration of Martial
Law (1987 CONST., Art. VII, Sec. 18)
Q: Petitioners assail the constitutionality of the extension of
Q: Is prior concurrence of the Congress required before the proclamation of martial law and suspension of the privilege
President may impose martial law or suspend the privilege of of the writ of habeas corpus in the entire Mindanao for one
writ of habeas corpus? more year after its initial declaration. One of their contentions
was that extension was approved with inordinate haste as the
A: No. The proclamation of martial law or the suspension of the Congress' deliberation was unduly constricted to an indecent
writ does not require prior concurrence of the majority of the 3 hours and 35 minutes and that the period to question the
Members of the Congress. However, the Congress may revoke, concerned officials were shorter compared to consideration
amend, shorten, or increase the period of such suspension.' of ordinary legislation on second reading. Can the Court
review how the Congress approved the extension of martial law?

David v. Macapagal-Arroyo, G.R. No. 171396, 03 May 2006.

344
345CONST., Art. VII, Sec. 18; Lagman v. Medialdea, G.R. Nos. 231658, 231771, &
231774, 04 July 2017. 346 Lagman v. Medialdea, G.R. Nos. 231658, 231771, & 231774, 04 July 2017.
122 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 123
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A: No. Article VI, Section 16(3) of the 1987 Constitution has martial law or of the suspension of the privilege of the writ, the
granted Congress the power to promulgate its own rules to Congress may exercise its authority to grant such extension as
govern its proceedings. This power is only limited to the may be requested by the President, even if it be subsequent to the
requirements of quorum, voting and publication as well as initial extension.
reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be Q: Article XII, Section 17 of the 1987 Constitution provides
attained. The rules in question do not pertain to quorum, voting that: "In times of national emergency, when the public
or publication. Furthermore, deliberations on extending martial interest so requires, the State may, during the emergency
law certainly cannot be equated to the consideration of regular or and under reasonable terms prescribed by it, temporarily
ordinary legislation. The Congress may consider such matter as take over or direct the operation of any privately-owned
urgent as to necessitate swift action, or it may take its time public utility or business affected with public interest."
investigating the factual situation.' Based on the foregoing, is it the Congress or the President
that has the power to take over private business affected with
Q: In assailing the extension of the proclamation, petitioners public interest?
also contend that the Constitution only allows a one-time
extension of martial law and/or suspension of the privilege of A: While the President alone can declare a state of national
the writ of habeas corpus, not a series of extensions amounting to emergency, however, without legislation, he has no power to
perpetuity. Is the contention of the petitioners, correct? take over privately-owned public utility or business affected with
public interest. The President cannot decide whether exceptional
A: No. Article VII, Section 18 of the 1987 Constitution is silent circumstances exist warranting the take-over of privately-owned
as to how many times the Congress, upon the initiative of the public utility or business affected with public interest. Nor can
Congress, may extend the proclamation of martial law or the he determine when such exceptional circumstances have ceased.
suspension of the privilege of habeas corpus. However, while it Likewise, without legislation, the President has no power to
does not specify the number of times that the Congress is point out the types of businesses affected with public interest that
allowed to approve an extension of martial law or the suspension should be taken over. Thus, the President has no absolute
of the privilege of the writ of habeas corpus, Section 18, Article authority to exercise all the powers of the State under Article
VII of the 1987 Constitution is clear that the only limitations to VII, Section 17 of the 1987 Constitution in the absence of an
the exercise of the congressional authority to extend such emergency powers act passed by Congress.349
proclamation or suspension are that the extension should be upon
the President's initiative; that it should be grounded on the G. Power of Impeachment (1987 CONST., Art. XI, Secs. 2-3)
persistence of the invasion or rebellion and the demands of
public safety; and that it is subject to the Court's review of the Q: May an incumbent Justice of the Supreme Court be
sufficiency of its factual basis upon the petition of any citizen. disbarred as a lawyer?
Thus, whenever there is a determination that the invasion or (a) No, it will amount to removal.
rebellion persists and public safety requires the extension of

3"Id.
347 Lagman v. Pimentel, G.R. No. 235935, 06 February 2018. "9 Id .
 124 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 125
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(b) No, his membership in the bar is secure. Q: TRUE OR FALSE. A conviction in the impeachment will
bar the filing of subsequent criminal cases against the
(c) Yes, by the Supreme Court itself.
impeachable officer.
(d) Yes, by Congress in joint session.3"
A: False. Article XI, Section 3(7) of the 1987 Constitution
A: (a) No, it will amount to a removal.' provides that the judgment of impeachment is only limited to
removal of from office and disqualification to hold any other
Q: Who are the impeachable officers under the Constitution? office under the Republic of the Philippines. Nonetheless, this
A: The following are the impeachable officers: The President, will not bar the filing, prosecution, and conviction of the same
officer in a separate criminal case.
Vice President, Members of the Supreme Court, Members of the
Constitutional Commission, and the Ombudsman."
Q: What are the grounds for impeachment?
Q: Can the Senate initiate a case for the impeachment of a A: The following are impeachable offenses:
sitting Vice President?
1. Culpable violation of the Constitution;
A: No. Article XI, Section 3(1) of the 1987 Constitution
expressly provides that the House of Representatives shall have 2. Treason;
the exclusive power to initiate all cases of impeachment.
3. Bribery;
Q: What is the required number of votes for the following acts
in relation to impeachment proceedings: 4. Graft and Corruption;
5. Other High Crimes; and
1. Affirm a favorable resolution of the Committee.
6. Betrayal of Public Trust.'
2. Conviction
3. Override a contrary resolution of the Committee. H. Electoral Tribunals (1987 CONST., Art. VI, Sec. 17)

A: Article XI, Section 3(3) of the 1987 Constitution provides Q: What is the composition of the Electoral Tribunals?
that a vote of at least 1/3 of all the Members of the House shall
be necessary to affirm a favorable resolution or override a A: Each Electoral Tribunal shall be composed of nine (9)
Members, three (3) of whom shall be Justices of the Supreme
contrary resolution of the Committee. A higher percentage of
vote is required to convict an impeachable officer, that is 2/3 of Court to be designated by the Chief Justice, and the remaining
all the Members of the Senate.' six (6) 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

350 BAR 2011.

35I
CONST., Art. XI, Sec. 2.
352 CONST., Art. XI, Sec, 2.
353 CONST., Art. XI, Sec. 3(6). 354 CONST., Art. XI, Sec. 2.
126 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 127
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the parties or organizations registered under the party-list system Q: Rep. Camasura was a member of the HRET. There was
represented therein."' an electoral contest involving his party-mate and Bondoc.
The party instructed him to vote for his party-mate.
Q: Who shall serve as the Chairman of the Electoral Tribunal? However, Rep. Camasura cast a conscience vote in Bondoc's
favor. As a result, the party expelled him from HRET on the
A: The most senior Justice shall be its Chairman.'
grounds of "disloyalty to the party" and breach of "party
Q: When should the Electoral Tribunals be constituted? discipline." Was the expulsion valid?

A: Within 30 days after the organization of the Senate and A: No. The expulsion is void. HRET members as "sole judges"
House of Representatives upon the election of the Senate of congressional election contests, are entitled to security of
President and the House Speaker.' tenure just as members of the judiciary enjoy security of tenure
under our Constitution. As judges, the members of the tribunal must
Q: Is disloyalty to the party a valid cause for termination of be non-partisan. They must discharge their functions with complete
membership in the HRET? detachment, impartiality, and independence, even independence
from the political party to which they belong. Hence, "disloyalty
A: As judges, the members of the tribunal must be non-partisan. to party" and "breach of party discipline," are not valid grounds
They must discharge their functions with complete detachment, for the expulsion of a member of the tribunal.'
impartiality, and independence, even independence from the
political party to which they belong. Hence, "disloyalty to party" Q: For the 2016 ARMM Elections, the COMELEC entered
and "breach of party discipline," are not valid grounds for the an Automated Election System (AES) Contract with Smartmatic-
expulsion of a member of the tribunal.' TIM for the procurement of over 90,000 Vote Counting
Machines. The terms of the contract state that all goods that
Q: When does jurisdiction over election cases pass from the will remain in the possession of COMELEC because of any
COMELEC to the respective electoral tribunals? election contest shall be considered sold to COMELEC.
A: The SET and HRET commence jurisdiction over an election Consequently, this will require the protestant to shoulder
contest once the candidate is already considered as a Member of such cost. X filed an election protest against Senator A,
the House of Representatives. The following conditions must pertaining to the official results of the senatorial election. As
concur: (1) a valid proclamation, (2) a proper oath, and (3) a result, the SET then directed the COMELEC to retain
assumption of office.' custody of over 150 VCMs and their Secure Cards, subject to
the payment of the protestant X of additional cash deposit of
over P3 Million. Failure to cover such amount will result to
the dismissal of the protest. Aggrieved, X imputed grave
abuse of discretion on SET when it refused to rule on the
validity of the AES Contract. Does the SET have jurisdiction
to pass upon the constitutionality of the AES Contract?
355 CONST., Art. VI, Sec. 17.
356
CONST., Art. VI, Sec. 17.
357 CONST., Art. VI, Sec. 19.
358 Bondoc v. Pineda, G.R. No. 97710, 26 September 1991.
359 Reyes v. COMELEC, G.R. No. 207264, 25 June 2013. 360 Bondoc v. Pineda, G.R. No. 97710, 26 September 1991.
128 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 129
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A: No. The SET has no jurisdiction. Article VI, Section 17 of exceptions are present in this case, it is clear that HRET lacked the
the 1987 Constitution provides that the SET and HRET have legal capacity to initiate the present case against Atty. Daisy.363
jurisdiction over all contests relating to the election, returns, and
qualifications of their respective Members. The phrase "election, I. Commission on Appointments (1987 CONST., Art. VI,
returns and qualifications" has been interpreted in Javier v Sec. 18; Art. VII, Sec. 16; Art. VIII, Sec. 8)
COMELEC 361 as referring to all matters affecting the validity of
the title of the protestant. It does not include any power to rule Q: What appointments are required to undergo confirmation
on the validity and enforceability of any provision in the AES by the Commission on Appointments?
Contract, the power of which is lodged within the exclusive A: The Commission on Appointments shall confirm the appointments
jurisdiction of regular courts.362 by the President with respect to the following positions: HAPCOO
Q: Atty. Daisy, then Secretary of the House of Representatives 1. Heads of the Executive Departments; (except if it is the
Electoral Tribunal (HRET) requested to avail of the 15 days Vice-President who is appointed to the post)
of special leave under the Magna Carna of Women to
undergo hysterectomy. After a month of availing such leave, 2. Ambassadors;
Atty. Daisy indicated her intention to return back to work
3. Other Public ministers or Consuls;
but was directed by the HRET to take her 2-month special
leave. Aggrieved, Atty. Daisy filed an appeal with the Civil 4. Officers of the AFP from the rank of Colonel or Naval
Service Commission (CSC) which ruled in her favor. This Captain; and
then prompted the HRET, through its Deputy Secretary, to file
a Petition for Review. Atty. Daisy then counters that instant 5. Other officers whose appointments are vested in him by
petition should have been filed by the Office of the Solicitor the Constitution (i.e., COMELEC members)364
General (OSG) and not by the Deputy Secretary of the
HRET. Is Atty. Daisy correct? Q: Who are the officers referred to under Item (4) above,
i.e., "other officers whose appointments are vested in him in
A: Yes, Atty. Daisy is correct. As a general rule, it is the OSG, this Constitution"?
as the law office of the government, who should have filed the
petition considering that the HRET is considered as an instrumentality A: They are the (a) regular members of the Judicial and Bar Council
of the government. However, the OSG may be excused from (Article VIII, Section 8(2)), (b) Chairman and Commissioners of
performing such task in instances where there is an express the Civil Service Commission (Article IX-B, Section 1(2)),
authorization from itself naming the legal officers and deputizing Commission on Elections (Article IX-C, Section 1(2)), and
them to represent their respective offices under their supervision Commission on Audit (Article IX-D, Section 1(2)), and (c)
and control or when the OSG takes a position different from that members of the regional consultative commission (Article X,
of the agency it is duty bound to represent. Since none of the Section 18).

363 House of Representatives Electoral Tribunal v. Daisy B. Panga-Vega, G.R. No.

361
G.R. No. L-68379-81, 22 September 1986. 228236, 27 January 2021, as penned by Lopez, J.
362 Tolentino v. SET, G.R. No. 248005, 11 May 2021. 364 CONST. Art. VII, Sec. 16.
 130 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 131
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Q: May the Commission on Appointment meet when other hand, the appointment of Benito as Commissioner of BI and
Congress is not in session? Dexter as Chairman of the CHR are permanent and regular.'
A: No. Article VI, Section 19 of the 1987 Constitution is clear (b) A civil society group, the Volunteers Against Misguided
that it can only meet while the Congress is in session and at the Politics (VAMP) files suit, contesting the legality of
call of its chairman or majority of its members. the acts of the appointees and claiming that the appointees
should not have entered into the performance of the
Q: The Commission on Appointments is composed of members functions of their respective offices, because their
of the two Houses of Congress. Does this mean that the appointments had not yet been confirmed By the
Commission on Appointments is under the supervision of Commission on Appointments. Is this claim of VAMP,
both the Senate and the House of Representative? correct? Why or why not?368
A: No. The Commission on Appointments is independent of the A: The contention of VAMP is not correct. Ad interim
two Houses of the Congress.'" appointments are immediately effective and shall continue to be
effective upon approval, or until disapproval by the Commission
Q: While Congress was not in session, the president appointed 369
on Appointments or until the next adjournment of the Congress.
Antero as Secretary of the Department of Tourism (DOT),
Benito as Commissioner of the Bureau of Immigration (BI), Q: Suppose there are 202 members in the House of
Clodualdo as Chairman of the Civil Service Commission Representatives. Of this number, 185 belong to the Progressive
(CSC), Dexter as Chairman of the Commission on Human Party of the Philippines or PPP, while 17 belong to the
Rights (CHR), and Emmanuel as Philippine Ambassador to Citizens Party or CP. How would you answer the following
Cameroon. The following day, all the appointees took their questions regarding the representation of the House in the
oath before the President and commenced to perform the Commission on Appointments?3"
functions of their respective offices.
a) How many seats would the PPP be entitled to have in
(a) Characterize the appointments, whether permanent the Commission on Appointments? Explain your
or temporary; and whether regular or interim, with answer fully.
reasons.366
A: Considering that the 185 members of PPP represent 91.58%
A: The appointments of Antero as Secretary of the DOT, of the 202 members of the House of Representatives, PPP is
Clodualdo as Chairman of the CSC, and Emmanuel as Philippine entitled to have ten (10) of the twelve (12) seats in the
Ambassador to Cameroon are ad interim and permanent. On the Commission on Appointments pursuant to Article VI, Section 18
of the 1987 Constitution.

367
See Matibag v. Benipayo, G.R. No. 149036, 02 April 2002; Sarmiento v. Alison,
G.R. No. 79974, 17 December 1987; Bautista v. Salonga, G.R. No. 86439, 13 April
1989; CONST., Art. 7, Sec. 16.
368 BAR 2016.
366 Cunanan v. Tan, Jr., G.R. No. L-19721, 10 May 1962. 369 CONST., Art. VII, Sec. 16.
366 BAR 2016. 37° BAR 2002.
132 COMPENDIOUS BAR REVIEWER LEGISLATIVE DEPARTMENT 133
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Although 185 members of PPP represent 10.98 seats in the choice. Consequently, when the qualifications prescribed by
Commission on Appointments, under the ruling in Guingona v. Congress can only be met by one individual, such enactment
Gonzales,37' to allow PPP to elect more than its proportional effectively eliminates the discretion of the appointing power to
share of members is to confer upon it a greater share in the choose and constitutes an irregular restriction on the power
membership in the Commission on Appointments and more of appointment."'
power to impose its will on the minority, who by the same token,
suffers a diminution of its rightful membership in the Commission.
b) Suppose 15 of the CP representatives, while maintaining
their party affiliation, entered a political alliance with
the PPP to form the "Rainbow Coalition" in the House.
What effect, if any, would this have on the right of
the CP to have a seat or seats in the Commission on
Appointments? Explain your answer fully.
A: The political alliance formed by the 15 members of CP with
PPP will not result in the diminution of the number of seats in
the Commission on Appointments to which the CP is entitled.
As held in Cunanan v. Tan, Jr.,372 the shifting of votes at a given
time, even if due to arrangements of a more or less temporary
nature, like the one that has led to the formation of the so-called
"Rainbow Coalition", does not suffice to authorize a reorganization
of the membership of the Commission. Otherwise, the Commission
on Appointments will have to be reorganized as often as votes
shift from one side to another in the House.

Q: Can the Congress limit the choice of the President on

who to appoint to only one candidate?
A: No. The President's exercise of his power to appoint officials
is provided for in the Constitution and laws. Discretion is an
integral part in the exercise of the power of appointment. Even
on the pretext of prescribing the qualifications of the officer,
Congress may not abuse such power as to divest the appointing
authority, directly or indirectly, of his discretion to make his own

371
G.R. No. 106971, 20 October 1992.
372 G.R. No. L-19721, 10 May 1962. 373 Garafil v. Office of the President, G.R. No. 203372, 16 June 2015.
 EXECUTIVE DEPARTMENT 135

Q: President Marie ran for President and was only able to

III. Executive Department serve for 3 and 1/2 years. Is she eligible to run again in the
next Presidential elections?
A. President and Vice President
A: Yes. The Constitution states that the prohibition for reelection
1. Term, Qualifications, and Election (1987 CONST., Art. applies only to Presidents who were able to serve for more than
VII, Secs. 2-4) four (4) years.375 In this scenario, President Marie only served for
three (3) and '/2 years. Hence, she can run again as president in the
Q: What are the qualifications of a President/Vice President next elections.
as stated in the Constitution?
Q: Vice-President Alex succeeded to the Presidency on
A: Article VII, Sections 2 and 3 of the 1987 Constitution March 2018 and her term ended on 30 June 2022. By 2023,
provides that no person may be elected as President or Vice she announced her intention to run in the 2028 elections. Is
President unless he or she possesses the following qualifications: she eligible to run as President in the 2028 elections?
1. Natural-born citizen of the Philippines; A: No, since Alex has already served as President for more than
2. Registered voter; four years, she is disqualified to run as President in the 2028
elections since no person who has succeeded as President and
3. Able to read and write; has served for more than four (4) years shall be qualified for
election to the same office at any time?"
4. At least 40 years of age on the day of election; and
5. Resident of the Philippines for at least 10 years Q: Is the appointment of the Vice President to the Cabinet
subject to confirmation process of the Commission on
immediately preceding such election.
Appointments?
Q: What is the term of office of a President and Vice
A: No. Article VII, Section 3 of the 1987 Constitution provides
President? that the Vice President may be appointed as Member of the
A: A President/Vice President's term is for six (6) years, which Cabinet and such appointment requires no confirmation.
shall begin at noon on the 30th day of June following the day of
election and shall end at noon of the same date six (6) years Q: Presidential candidates Damaso and Salvi both garnered
thereafter.'" equal number of votes. Damaso suggested that they break the
tie by using a toss coin. Salvi strongly rejected this proposition
and argued that it is up to the Congress to choose the winner.
Who is correct between the two?

374 CONST., Art. VII, Sec. 4.

375 CONST., Art. VII, Sec. 4.

134 36 CONST., Art. VII, Sec. 4.
 136 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 137
ON POLITICAL LAW

A: Salvi is correct. The Constitution provides that in case of a A: Yes, there is legal basis to postpone the regular elections for
tie, it is the Congress, by majority vote of all the members of the President and the Vice President. While it is true that the
both Houses, voting separately, that will choose the winner.37 Article VII, Section 4 of the 1987 Constitution provides that the
regular election for the said positions be conducted during the second
Q: Who has the sole power to judge(s) all contests relating to Monday of May, such rule admits of exception as evidenced by
the election, returns and qualifications of the President and the phrase "unless otherwise qualified by law." Simply put, the
the Vice President? Congress, as the law-making body of the country, can set it at
A: It is the Supreme Court, sitting en banc, who is empowered any other date, subject to the other limitations as provided under
by the Constitution to be the sole judge of all contests relating to the Constitution and other related laws.
the election, returns, and qualifications of the President or Vice-
Q: Can the opening of the returns of the elections for
President, and may promulgate its rules for the purpose.378
President and Vice President be conducted only with the
Q: TRUE OR FALSE. Voluntary renunciation of the Vice presence of the members of the Senate?
President of his office for a period of 2 months may be considered A: No. Article VII, Section 4 of the 1987 Constitution provides
as an interruption for the purposes of determining the continuity that the opening of the certificates of canvass for the position of
of the service for the full term for which he was elected. President and Vice President be done by the President of the
A: False. Article VII, Section 4 of the 1987 Constitution clearly Senate in a joint public session and in the presence of both the
provides that any voluntary renunciation of office of the Vice members of the Senate as well of the House of Representatives.
President for any length of time shall not be considered as an It is also provided that such an opening shall be made not later
interruption in the continuity of the service for the full term for than thirty (30) days after the election.
which he was elected.
2. Privileges, Inhibitions, and Disqualifications (1987 CONST.,
Q: In view of the on-going COVID-19 pandemic, Congressman Art. VII, Secs. 6 and 13)
Daniel suggested the passing of a law to postpone the 2022 Concept of Presidential Immunity
National Elections which necessarily include the postponement of
the elections for the president and vice president. This was Q: Is the President immune from suit?
objected to by Congressman Catherine on the ground that
the holding of the regular elections for such positions must A: Yes. Jurisprudence dictates that the presidential immunity
only be conducted on the r d Monday of May, as evidenced from suit remains preserved in the system of government of this
by the word "shall" in Article VII, Section 4 of the 1987 country, even though not expressly reserved in the 1987 Constitution.
Constitution. Considering the clear mandate of the Constitution, The President may not be sued during his tenure of office or
is there a legal basis for the postponement of the elections for actual incumbency. The President is granted the privilege of
such positions? immunity from suit to assure the exercise of Presidential duties
and functions free from any hindrance or distraction, considering
that the position of Chief Executive of the Government requires

377 CONST., Art. VII, Sec. 4.

378 CONST., Art. VII, Sec. 4.
138 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 139
ON POLITICAL LAW

all of the office-holder's time and demands undivided attention to not mean give unbridled immunity to the President since he/she
his duties."9 remains accountable to the people through impeachment proceedings?'

Q: What is the extent of Presidential Immunity? Q: Sen. De Lima delivered a privilege speech on the floor of
the Senate calling a stop to the alleged extrajudicial killings
A: Immunity does not mean that the President is not accountable
committed during the crackdown on drugs and urging her
to anyone. Like any other official, he remains accountable to the
colleagues in the Senate to conduct investigations of the
people, but he may be removed from office only in the mode
alleged victims.
provided by law and that is by impeachment.380 Incumbent
presidents are immune from suit or from being brought to court In response, President Duterte issued several public statements
during the period of their incumbency and tenure but not beyond.381 against Sen. De Lima, including denunciations of her
corruption and immorality. The statements prompted her to
Q: Petitioner X filed a petition for writ of mandamus against initiate a petition for the issuance of a writ of habeas data
respondents including President Duterte as well as other against President Duterte. May the incumbent President be
Cabinet Officials, seeking to compel them to observe the Food subject to court proceedings even for a limited purpose
and Drug Administration (FDA) rules on the acquisition, under the Rules on the Writ of Habeas Data?
procurement, and use of drugs in relation to the trials and
procurement of Sinovac Vaccines. Is President Duterte A: No. The President enjoys immunity from suit. A suit will
properly impleaded in this case? degrade the dignity of the high office of the President, the Head
of State, if he can be dragged into court litigations while serving
A: No, President Duterte should not be impleaded and must be as such. However, this does not mean that the President is not
dropped as a respondent. It is a settled rule that the President accountable to anyone. Like any other official, he remains
cannot be sued during his or her tenure. This presidential accountable to the people, but he may be removed from office
immunity applies regardless of the nature of the suit brought only in the mode provided by law and that is by impeachment.'
against an incumbent president to assure that the exercise of the
presidential functions shall be free from any hindrance or Q: A corruption scandal was discovered between the Philippine
distraction. Moreover, there is no need for the President to first Government and a Chinese corporation regarding the
invoke the said immunity before he can avail of such because to manufacture of telecommunications equipment. One of the
do so would render useless the very protection accorded by the key witnesses was then Jun Dela Cruz who served as an
provision which is to protect the President from any harassment unofficial consultant in the deal. He was then summoned by
or distraction in the discharge of his duties. To rule as such does the Senate by Jun failed to appear thereon. He claimed that
he was instructed by an undersecretary to go abroad. This
prompted the Senate to issue a subpoena against him. Jun
decided to go home but upon disembarking from the aircraft,
several men held his arms and took his bag. He also allegedly

379 De Lima v. Duterte, G.R. No. 227635, 15 October 2019, citing Soliven v. Makasiar,
G.R. No. 82585, 14 November 1998.
389 David v. Macapagal-Arroyo, G.R. No. 171396, 03 May 2006. 387 Nepomuceno v. Duterte et.al, U.D.K. No. 16838, 11 May 2021.
381 Estrada v. Desierto, G.R. No 146710-15, 03 April 2001. 383 De Li,na vs. Duterte, G.R. No. 227635, 15 October 2019.
 140 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 141
ON POLITICAL LAW
'M

heard from one of the men that they should avoid being seen Waiver and Exceptions
by the Senate representatives. He was then taken to a hotel
and was prevented from leaving. This prompted his sister to Q: Juan Dela Cruz is a columnist of Philippine Moon, while
file for a Writ of Amparo naming President Darcy as one of Glen Garcia is its publisher. In one of his articles, Dela Cruz
the respondents. Does presidential immunity apply to an accused President Cardo of having an affair with one of the
Amparo petition? presidential staff. This caused President Cardo to file a case
for libel against Dela Cruz and Garcia. For his part, Dela
A: Yes, it applies to an Amparo petition. It is settled in Cruz contends that "the reasons which necessitate presidential
jurisprudence that the President enjoys immunity from suit during immunity from suit impose a correlative disability on part of
his or her tenure of office or actual incumbency. However, once President Cardo to file the present case against them. Can
the tenure of the President ends, this presidential privilege of President Cardo initiate criminal proceedings against Dela
immunity cannot be invoked by a non-sitting president even for Cruz and Garcia?
acts committed during his tenure.'
A: Yes. Our Constitution grants the President the privilege of
Q: A group of representatives and concerned citizens assailed immunity from suit to assure that the exercise of Presidential
the constitutionality of loan agreements entered into by the duties and functions will remain free from any hindrance or
Government of the Republic of the Philippines, represented distraction. However, this privilege only pertains to the President
by the Department of Finance, for being violative of certain by virtue of his office and may only be invoked by him alone.
provisions of the Constitution and sought to compel the Thus, an accused in a criminal case where the President is
respondents to produce the procurement and other relevant complainant cannot raise presidential privilege as a defense to
documents in connection to the loan agreements. The bar the case from proceeding against him. The President has the
petitioners impleaded President Rory as a respondent in the sole prerogative whether to exercise or waive such privilege.'
case. Should President Rory be dropped as a respondent
considering the presidential immunity from suit? Q: Due to a plethora of issues and the growing discontent of
the people in his presidency, President Jose vacated his post
A: Yes, President Rory must be dropped as a party respondent and allowed his Cabinet to participate in the peaceful
pursuant to the privilege of presidential immunity from suit. It transfer of power to the new administration. President Jose
must be emphasized that the concept of presidential immunity in was then later impeached and various criminal cases were
our jurisdiction does not distinguish whether the suit pertains to filed against him. President Jose argues that the criminal
an official act of the president. Neither does the immunity hinge cases should be dismissed since acts committed during the
on the nature of the suit.' term of his office are covered by the Presidential immunity
from suit. Is President Jose correct?
A: No. A distinction must be made between term and tenure.
Tenure represents the term during which the incumbent actually
holds office. The tenure may be shorter than the term for reasons
Lozada v. Arroyo, G.R. No. 184379-80, 24 April 2012.
384
385Colmenares v. Duterte, G.R. No. 245981 & 246594, 09 August 2022, citing
Nepomuceno v. Duterte, UDK No. 16838, 11 May 2021. 386 Soliven v. Makasiar, G.R. No. L-82585, 14 November 1988.
142 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 143
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within or beyond the power of the incumbent. From the of adequate need, such that the information sought "likely
deliberations, the intent of the framers is clear that the immunity contains important evidence" and by the unavailability
of the president from suit is concurrent only with his tenure and of the information elsewhere by an appropriate investigating
not his term. This is precisely to ensure that he will remain authority.389
unhampered in the performance of his duties.38'
Q: What types of information are within the ambit of the
Concept of Executive Privilege privilege?

Q: What are the two kinds of executive privilege? Differentiate A: Executive privilege covers all confidential or classified
one from the other. information between the President or head of office authorized by
the President and the public officers in possession of privileged
A: The two kinds of executive privilege are the presidential information, based on the judgment of the President or head of
communications privilege and the deliberative process privilege. office concerned, including:
Presidential communications privilege pertains to "communications,
documents or other materials that reflect presidential decision- 1. Conversations and correspondence between the President
making and deliberations and that the President believes should and the public official;
remain confidential." On the other hand, Deliberative Process
2. Military, diplomatic and other national security matters
Privilege includes "advisory opinions, recommendations and
which in the interest of national security should not be
deliberations comprising part of a process by which governmental
divulged;
decisions and policies are formulated."388
3. Information between inter-government agencies prior to
Q: What are the requirements to invoke presidential the conclusion of treaties and executive agreements;
communications privilege?
4. Discussion in close-door Cabinet meetings; and
A: To validly claim the presidential communications privilege,
the following requisites must be satisfied: 5. Matters affecting national security and public order.390
1. The protected communication must relate to a "quintessential Q: Who are the officials covered by the presidential
and non-delegable presidential power". communications privilege?
2. The communication must be authored or "solicited and A: Jurisprudence provides that officials who are within the
received" by a close advisor of the President or the "operational proximity" to direct presidential decision-making.
President himself. The judicial test is that an advisor The main consideration is to limit the availability of executive
must be in "operational proximity" with the President. privilege only to officials who stand proximate to the President,
not only by reason of their function, but also by reason of their
3. The presidential communications privilege remains a
positions in the Executive's organizational structure. An example
qualified privilege that may be overcome by a showing

387 Estrada v. Desierto, G.R. No 146710-15, 3 April 2001. 3" Id.

388 Neri v. Senate Committee on Accountability, G.R. No. 180643, 25 March 2008. 398 Senate of the Philippines v. Ermita, G.R. No. 169777, 20 April 2006.
144 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 145
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of this is communication received by a close advisor who is also Q: What exemptions are provided for in the Constitution in
a member of the Cabinet of the President." relation to the prohibition to hold any other office?

Q: Are department heads automatically exempted from the A: The Vice President may be appointed as a cabinet member'
power of inquiry by the Congress by the mere fact that they and the Secretary of Justice is made ex-officio member of the
are within the operational proximity of the President? Judicial and Bar Council.'

A: No. The President or the Executive Secretary acting by the Q: What are the prohibitions that apply to the spouse and
order of President are the only ones who can claim the privilege. relatives by consanguinity or affinity within the fourth civil
As a general rule, only one executive official may be exempted degree of the President after the latter's tenure?
from this power - the President on whom executive power is
vested, hence, beyond the reach of Congress except through the A: None. The prohibitions as contained in Article VII, Section
power of impeachment. However, the President may of course 13 of the 1987 Constitution only forbids the spouse of the
authorize the Executive Secretary to invoke the privilege on President as well as his relatives within 4th civil degree to be
his/her behalf, in which case the Executive Secretary must state appointed either as members of the Constitutional Commissions,
that the authority is "By order of the President."" Office of the Ombudsman, Secretaries, Undersecretaries, Chairmen
or heads of bureaus or offices, including GOCCs and their
Q: What are the inhibitions and disqualifications provided subsidiaries during the tenure of the President.
under Art. VII, Section 13 of the 1987 Constitution for the
President, Vice President, and Members of the Cabinet, Q: Art has been appointed by the President as the Acting
including their deputies or assistants? Secretary of Justice, in view of the resignation of the then
SOJ Secretary Loisa. A month after, the President has
A: The following are the prohibitions contained in Article VII, designated Art as the Acting Solicitor General in a concurrent
Section 13 of the 1987 Constitution for the President, Vice capacity. This prompted Danny to file a suit to challenge this
President, members of the Cabinet and their deputies or assistants: concurrent appointment for being violative of Article VII,
Section 13 of the Constitution. On the other hand, Art argues
1. Shall not hold any other office during their tenure; that his designation was only in an acting or temporary
2. Shall not directly or indirectly practice any other capacity and as such, he is not covered by the said
profession, participate in any business, or be financially prohibition. Is Art correct in his contention?
interested in any contract with, any franchise, or special A: No, Art is not correct. Article VII, Section 13 of the 1987
privilege granted by the government or any of its Constitution shows that the intent of the Framers of the
subdivision, agency, or instrumentality; and Constitution was to impose a stricter prohibition on the President
3. Shall avoid conflict of interest in the conduct of his office. and the Members of his Cabinet in so far as holding other offices
or employments in the Government or in government-owned or
government controlled-corporations was concerned. The provision

391 Neri v. Senate Committee on Accountability, G.R. No. 180643, 25 March 2008. 393 CONST., Art. V1I, Sec. 3.
392
Id. 394 CONST., Art. VIII, Sec. 8.
146 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 147
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made no reference as to the nature of the appointment or the office by the time she assumed Presidency, the prohibition is
designation. As such, the temporary nature of his appointment not applicable in this case.
will not shield him from the applicability of the provision."'
B. Executive and Administrative Powers (1987 CONST.,
Q: The National Amnesty Commission was created to receive, Art. VII, Secs. 1 and 17)
process, and review amnesty applications. It is composed of 7
members: A chairperson, 3 members appointed by the Q: What is executive power?
President and Secretaries of Justice, National Defense and
A: Executive power is the power to enforce and administer laws."'
Interior and Local Government as ex officio members. NAC
then issued an administrative order (AO) which gives the ex Nature of Executive Power
officio members the power to designate their representatives
to the Commission who, in turn, will be entitled to per diems, Q: Differentiate the delegated legislative power from the
allowances, bonuses and other benefits as may be authorized ordinance-making power of the President.
by law. Are the representatives entitled to the per diem
allowances? A: The delegation of legislative powers to the President is the act
of conferring upon the President quasi-legislative power or the
A: No, they are not entitled to the per diem allowances. Article power to adopt rules and regulations which are intended to carry
VII, Section 13 of the 1987 Constitution expressly prohibits the I out the provisions of the law and implement legislative policy
Members of the Cabinet to occupy dual or multiple offices, except which must not contravene the Constitution and the laws. In
in an ex-officio capacity. In turn, the designated representatives contrast, the ordinance-making power of the President does not
by the Members of the Cabinet are not entitled to something require or entail delegation from Congress but rather is inherent
their own principals are prohibited from receiving."' in the President's power of executive control of all the executive
departments, bureaus, and offices. It need not be published
Q: Michelle was elected as President in the recently concluded because these internal rules and regulations only regulate the
elections. Her aunt-in-law was already serving as the Ombudsman personnel of the administrative agency and do not create rights
even before she filed her certificate of candidacy. Is this nor impose obligations that may affect the public in general.'"
covered by the prohibition for the family members of the
President as stated in Article VII, Section 13 of the 1987 Q: Name the powers of the President as provided in the
Constitution? Constitution:

A: No. Article VII, Section 13 of the 1987 Constitution only A: The executive power of the President includes the following
prohibits the appointment of the family members of the President powers:
to the mentioned positions if the appointment happens during the 1. Power of Appointment,'"
President's tenure. Since Michelle's aunt-in-law was already in

Zabal v. Duterte, G.R. No. 238467, 12 February 2019.

397

395 Funa v. Agra, G.R. No. 191644, 19 February 2013. Province of Pampanga v. Executive Secretary, G.R. No. 195987, 12 January
398 2021;
396 National Amnesty Commission v. Commission on Audit, G.R. No. 156982, 08 ABAKADA Guro Party List v. Purisima, G.R. No. 166715, 14 August 2008.
September 2004. 399 CONST., Art. VII, Sec. 16.
148 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 149
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2. Power of Executive Control over Executive Departments,4°' A: It is a well-settled rule that in order for a delegation of
legislative power to be valid, the subordinate legislation issued
3. Power to ensure the Faithful Execution of Laws,401
by specialized administrative agencies must be germane to the
4. Commander-in-Chief of the Armed Forces,' objects and purposes of the law and in conformity with the
standards prescribed by law. A perusal of the provisions of
5. Power to grant executive clemency, 403 EPIRA would reveal that it seeks to champion customer choice.
Moreover, the mandatory migration of qualified end-users to the
6. Power to contract or guarantee foreign loans,404 and
contestable market as stated under the assailed circulars finds no
7. Power to enter into treaty or international agreements.405 basis under EPIRA. As such, the assailed circulars must be
struck down for being ultra vires.406
Q: The Department of Energy (DOE) is tasked to formulate
the rules and regulations that will actuate the objectives of Q: President Dante issued Executive Order No. 1 (EO1)
the Electric Power Industry Reform Act of 2001 (EPIRA). creating the Philippine Truth Commission (PTC) to investigate
On the other hand, the Energy Regulatory Commission reported cases of graft and corruption allegedly committed
(ERC) was tasked to implement the rules and regulations as by the previous administration. Acting on the belief that the
formulated by the DOE. Pursuant to their respective mandates, PTC is a public office and not merely an adjunct body of the
both the DOE and the ERC issued certain circulars which Office of the President, Johnny filed a case before the
mandated all contestable customers to secure a retail supply Supreme Court to assail EO1. Johnny asserts that EO1 is a
contract from the list of energy suppliers as provided by usurpation of the legislative power to create a public office
them. The issuances were assailed by various stakeholders as and appropriate funds for the same. Is Johnny correct in his
invalid forms of subordinate legislation for exceeding the law contention?
they sought to implement on the premise that under Section
A: No, Johnny is not correct. The power to create a truth
31 of the EPIRA, the migration of electricity end-users to the
commission finds justification in Article VII, Section 17 of the
contestable market is voluntary and not mandatory. For
Constitution which provides for the duty of the President to
their part, the DOE asserted that the law gave them
ensure that the laws are faithfully executed. One of the
encompassing quasi-legislative authority to formulate the
recognized powers of the President granted pursuant to this
rules as well as "awesome" regulatory powers to exercise all
constitutionally mandated duty is the power to create ad hoc
powers necessary or incidental to implement the EPIRA.
committees. This flows from the obvious need to ascertain facts
Rule on the validity of the circulars issued by DOE and ERC.
and determine if laws have been faithfully executed. In addition,
there is no appropriation of public funds but only an allotment or
allocation of existing funds which are already appropriated.'

400 CONST., Art. VII, Sec. 17.

aoi
CONST., Art. VII, Sec. 17.
402 CONST., Art. VII, Sec. 18.
CONST., Art. VII, Sec. 19. 406 Philippine Chamber of Commerce & Industry v. Department of Energy, G.R. No.
4" CONST., Art. VII, Sec. 20. 228588, 02 March 2021.
aos 407 Biraogo v. Philippine Truth Commission, G.R. No. 192935, 07 December 2010.
CONST., Art. VII, Sec. 21.
150 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 151
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Q: Does the President have the power to prohibit a dictator A: No. The President's exercise of his power to appoint officials
who voluntarily exiled to another country after he was is provided for in the Constitution and laws. Discretion is an
ousted during EDSA from returning to the country? integral part in the exercise of the power of appointment. Even
on the pretext of prescribing the qualifications of the officer,
A: Yes. While Article VII specifically enumerates the powers of
Congress may not abuse such power as to divest the appointing
the President, it is well-settled that such list is not exclusive.
authority, directly or indirectly, of his discretion to make his own
Executive power is more than the sum of specific powers so
choice. Consequently, when the qualifications prescribed by
enumerated. Whatever inherent power of the government that is
Congress can only be met by one individual, such enactment
neither legislative nor judicial has to be executive. In this case,
effectively eliminates the discretion of the appointing power to
the power involved is the President's residual power to protect
choose and constitutes an irregular restriction on the power of
the general welfare of the people. It is founded on the duty of the
appointment."'
President, as steward of the people borne by its duty to preserve
and defend the Constitution. It also may be viewed as a power Q: What is the difference on the appointment power of the
implicit in the President's duty to take care that the laws are President when the Congress is in session and when it is
faithfully executed. Thus, it is subject to the exercise of its in recess?
discretion.'"
A: When the Congress is in session, the President nominates,
Q: What is the scope of the administrative power of the and only upon the consent of the Commission on Appointments
President? may the person thus named assume office. However, this is not
the same with appointments made while the Congress is in recess
A: To effectively discharge the enforcement and administration
or what is also known as ad interim appointments. It takes effect
of the laws, the President is granted administrative power over
at once. The individual chosen may thus qualify and perform his
bureaus and offices, which includes the power of control. The
function without loss of time. His title to such office is complete.
power of control, in turn, refers to the authority to direct the
In the language of the Constitution, the appointment is effective
performance of a duty, restrain the commission of acts, review,
"until disapproval by the Commission on Appointments or until
approve, reverse, or modify acts and decisions of subordinate
the next adjournment of the Congress".41 1
officials or units, and prescribe standards, guidelines, plans and
programs." Q: Does the Constitution prohibit the ad interim appointment
of a COMELEC chairman on the ground that it is temporary
C. Power of Appointment (1987 C0NST., Art. VII, Secs. 13,
in nature and may be revoked by the President at his pleasure?
15 and 16

1
A: No. The Constitution prohibits appointments in an acting
1. Regular and Ad Interim capacity and not ad interim appointments. To differentiate,
designation in temporary or acting capacity can be withdrawn or
Q: Can the Congress limit the choice of the President on
revoked at the pleasure of the appointing power while an ad
who to appoint to only one candidate?

4°8 Marcos v. Manglapus, G.R. No. 88211, 15 September 1989. 410 Garafil v. Office of the President, G.R. No. 203372, 16 June 2015.
4°9 Id. 4" Id.
152 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 153
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interim appointment is permanent and irrevocable except as Q: When does an appointment made by the President
provided by law. A temporary or acting appointee does not enjoy deemed complete?
any security of tenure, no matter how briefly. This is the kind of
appointment that the Constitution prohibits the President from A: Only after the acceptance of the appointee as evidenced by
making to the three independent constitutional commissions, his or her oath of office or his or her assumption to office.416
including the COMELEC.412 Q: What is a by-passed appointment and what are its effects?
Q: What is the difference between regular and ad interim A: A by-passed appointment is one that has not been finally
appointments? acted upon on the merits by the Commission on Appointments at
A: A regular appointment is an appointment made when the close of the session of Congress. There is no final decision
Congress is in session and takes effect only after confirmation by by the Commission on Appointments to give or withhold its
the Commission on Appointments.413 Once it has been approved, consent to the appointment as required by the Constitution.
it continues until the end of the term of the appointee. On the Absent such decision, the President is free to renew the ad
other hand, an ad interim appointment is made when Congress is interim appointment of a by-passed appointee.417
not in session. It takes effect immediately but ceases to be valid
Q: What is the difference between an ad interim
upon the disapproval of the Commission on Appointments or appointment from an appointment in an acting capacity?
upon the next adjournment of Congress.'
A: An ad interim appointment is extended only when Congress
Q: Article IX of the Constitution prohibits re-appointment is in recess and only to positions which need the confirmation of
of a COMELEC Chairman. If the President appoints the the Commission of Appointment. It is also a permanent
COMELEC Chairman in an ad interim capacity and such appointment.418 An appointment in acting capacity419 is only for
appointment was by-passed due to lack of time to organize temporarily filling important offices, can be made even when
the Commission on Appointments, can the President renew Congress is in session and is not submitted to the Commission
the by-passed ad interim appointment? on Appointment for confirmation.
A: Yes. A by-passed ad interim appointment can be revived by a
2. With or without COA Confirmation
new ad interim appointment because there is no final disapproval
under Section 16, Article VII of the Constitution, and such new Q: What appointments are subject to confirmation by the
appointment will not result in the appointee serving beyond the Commission of Appointments?
fixed term of seven years.415

416 Garafil v. Office of the President, G.R. No. 203372, 16 June 2015.
417
Mailbag v. Benipayo, G.R. No. 149036, 02 April 2002.
418
412 Mailbag v. Benipayo, G.R. No. 149036, 02 April 2002. Pamantasan ng Lungsod ng Maynila v. I. 140 SCRA 22.
413 General v. Urro, G.R. No. 191560, 29 March 2011. 419 Sec. 17, Chapter 5, Title I, Book Ill of Executive Order No. 292: "The President
414 Matibag v. Benipayo, G.R. No. 149036, 02 April 2002. may temporarily designate an officer already in the government service, or any other
415 Id. competent person to perform the functions of an office in the executive branch."
154 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 155
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A: Article VII, Section 16 of the 1987 Constitution enumerates vacancies therein will prejudice public service or endanger
appointments that are subject to the review and confirmation of public safety.420
the Commission namely: HAPCOO
Q:Can the President still make any appointments two
1. Heads of the executive departments, months before the next Presidential election?
2. Ambassadors, A: Yes. The ban on midnight appointments does not cover
appointments to fill up the vacant positions of justices in the
3. Other public ministers and consuls,
Supreme Court nor does it prohibit making temporary appointments
4. Other officers of the armed forces from the rank of to executive positions when continued vacancies therein will
421
colonel or naval captain, and prejudice public service or endanger public safety.

5. Other officers whose appointments are vested in him in 4. Removal from Office
this Constitution.
Q: Where does the President's power of removal stem?
Q: Who are the officers referred to under Item (5) above,
A: The President's power to appoint carries with it the power to
i.e., "other officers whose appointments are vested in him in
remove." Hence, generally, all officers appointed by the
this Constitution"?
President are also removable by him.423 The exception is when
A: They are the (a) regular members of the Judicial and Bar the Constitution expressly prescribes certain methods for the
Council (Article VIII, Section 8(2)), (b) Chairman and Commissioners removal of specific officers, such as: (a) members of the
of the Civil Service Commission (Article IX-B, Section 1(2)), Supreme Court, who may only be removed after impeachment
Commission on Elections (Article IX-C, Section 1(2)), and proceedings initiated by Congress424; (b) judges of lower courts may
Commission on Audit (Article IX-D, Section 1(2)), and (c) be removed only by the Supreme Court by virtue of its
members of the regional consultative commission (Article X administrative supervision425; (c) chairpersons and commissioners of
Section 18). the Constitutional Commissions may be removed only by
impeachment426; and (d) the ombudsman may only be removed
3. Midnight Appointments by impeachment.'

Q: What is the rule on Midnight Appointments?

A: A President or acting president is prohibited from making
appointments within two (2) months immediately before the next
presidential elections and up to the end of his term, except 420 CONST., Art. VII, Sec. 15.
temporary appointments in executive positions when continued 421 CONST., Art. VII, Sec. 15; De Castro v. Judicial and Bar Council, G.R. No.
191002, 17 March 2010.
422
Aguirre, Jr. v. De Castro, 378 Phil. 714 (1999).
423 Cruz, Carlo L., The Law of Public Officers, 154-155 (1992).
424 CONST., Art. Xl, Sec. 2.
425 CONST., Art. VIII, Secs. 6 and 11 .
426 CONST., Art. XI, Sec. 2.
427 CONST., Art. XI, Sec. 2.
156 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 157
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Q: Does a Department Secretary have disciplinary jurisdiction A: The president's inherent ordinance-making power is the
over a presidential appointee? authority to issue "intrabranch orders and instructions or internal
rules for the executive branch" which do not bind the public. It is
A: No. For presidential appointees, the power to impose penalty
not a delegated authority from the legislature but is a consequence
resides with the President pursuant to his power of control under
of executive control over officials of the executive branch. In the
the Constitution and the Administrative Code. While the power exercise of executive control, the president has the inherent
to investigate presidential appointees can be designated to power to adopt rules and regulations and delegate this power to
department heads, such power to investigate does not include the subordinate executive officials.'
power to impose penalty. This is because presidential appointees
come under the direct disciplining authority of the President. Full Q: The National Printing Office (NPO) was formed during
discretion is, therefore, given to the President to remove his the term of President Corazon Aquino and was given exclusive
appointees .428 printing jurisdiction over government paraphernalia. However,
President Arroyo issued an Executive Order which allowed
Q: Acting President Sally made several appointments in the private sector to compete with the NPO. Employees of
different government positions before she was replaced by the NPO is now claiming that the president is without power
the duly elected President, Toby. Not even a month into his to issue the assailed EO. Are they correct in their contention?
new office, Toby decided to revoke most of the appointments
issued by then Acting President Sally. Can Toby revoke such A: No. It is a well-settled principle in jurisprudence that the
appointments? Explain. President has the power to reorganize the offices and agencies in
the executive department in line with the President's constitutionally
A: Yes, Toby may revoke the appointments. Article VII, Section granted power of control over executive offices and by virtue of
14 of the 1987 Constitution provides that appointments extended previous delegation of the legislative power to reorganize
by an Acting President shall remain effective, unless revoked by executive offices under existing statutes. The NPO, as an agency
the elected President, within ninety (90) days from his assumption that is part of the Office of the Press Secretary (which in various
or reassumption of office. In this case, Toby revoked the appointment times has been an agency directly attached to the Office of the
within the stated period, hence such an act of revocation is valid. Press Secretary or as an agency under the Philippine Information
Agency), is part of the Office of the President. This power to
D. Power of Control and Supervision (1987 CONST., Art. reorganize includes power to effect less radical or less substantive
VII, Sec. 17) changes to the functional and internal structure of the Office of
1. Executive Departments and Offices; Doctrine of Qualified the President, including the modification of functions of such
Political Agency executive agencies as the exigencies of the service may require.
In this case, there was a mere alteration of the main function of
Q: What is the ordinance-making power of the President?
Does it need a valid delegation from Congress?

428
Department of Trade and Industry v. Danilo Enriquez, G.R. No. 225301, 02 June 429 ABAKADA Guro Party List v. Purisima, G.R. No. 166715, 14 August 2008;
2020. Province of Pampanga v. Executive Secretary, G.R. No. 195987, 12 January 2021.
158 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 159
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the NPO by limiting the exclusivity of its printing responsibility person particularly chosen by the President will be removed by
to election forms.43° his own subordinate without his prior express conformity.433

Q: Is there a limit to the power of the President to reorganize Q: The National Power Corporation Board of Directors
offices in the Executive Department? (NPC-BOD) is composed of several cabinet secretaries who
are serving in their ex-officio capacity as provided for under
A: Yes. The presidential power to reorganize agencies and
the EPIRA. On 2010, the sitting NPC-BOD confirmed and
offices in the executive branch of government is subject to the
ratified Board Resolution No. 2009-72 which granted Performance
condition that such reorganization is carried out in good faith. As Incentive Benefits (NB) to some of its employees. Such resolution
a general rule, a reorganization is carried out in "good faith" if it
was then later assailed on the ground that the grant of PIB
is for the purpose of economy or to make bureaucracy more lacked prior approval of the President as required under
efficient. If the reorganization is done in good faith, the abolition Section 37 of Administrative Order (AO) No. 1038. For their
of positions, which results in loss of security of tenure of
part, the NPC-BOD postulate that the grant of the PIB
affected government employees, would be valid.431 through Board Resolution No. 2009-72 was deemed authorized
Q: Explain the Doctrine of Qualified Political Agency. by the President considering that the NPC Board is comprised
of cabinet secretaries who are alter egos of the President. Is
A: The doctrine of qualified political agency or the alter ego the contention of NPC-BOD, correct?
doctrine postulates that the heads of the various executive
departments are the alter egos of the President and, as such, the A: No, the contention of the NPC-BOD is not correct. In one
actions taken by them in the performance of their official duties case decided by the Supreme Court,' it was established that the
are deemed the acts of the President unless the latter disapproves doctrine of qualified political agency is not applicable to the acts
such acts."' of the cabinet members who occupy their positions as board
members in an ex-officio capacity since the Cabinet members sat
Q: The President is given the power to remove his or her on the Board of Directors ex-officio, or by reason of their office
appointees. Can this power to remove, even without concurrence or function, not because of their direct appointment to the Board
of the President, be extended to Department Secretaries by by the President. Simply put, since it was the law and not the
virtue of the doctrine of qualified political agency? president that sat them in that Board, the doctrine of qualified
political agency could not be extended to their acts. In this case,
A: No. The doctrine of qualified political agency cannot be used it must be noted that when the cabinet secretaries approved
to grant the department heads the power to impose penalty upon Board Resolution No. 2009-72, they did not act as alter egos of
erring subordinates who are presidential appointees without prior the President, but as members of the NPC Board in their ex-
approval of the President. To rule otherwise would put the officio capacity under the EPIRA. Hence, their assent to the grant
executive department into a precarious situation where the very

43° Banda v. Ermita, G.R. No. 166620, 20 April 2010. " 3 Id.
431 Id. 434 National Power Corporation Board of Directors v. Commission on Audit, G.R.
432 id. G.R. No. 242342, 10 March, 2020.
160 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 161
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of the PIB cannot be deemed as the required approval of the The respective roles of each government agency are particularly
President.435 defined and enumerated. More importantly, the situation in
Boracay can in no way be characterized or labelled as a mere
2. Local Government Units (1987 CONST., Art. X, Sec. 4) local issue as to leave its rehabilitation to local actors. Boracay is
a prime tourist destination which caters to both local and foreign
Q: What is the extent of the power of the President over tourists. Any issue thereat has corresponding effects, direct or
Local Government Units? otherwise, at a national leve1.4"
A: The Constitution vests the President with the power of
supervision, not control, over local government units (LGUs). E. Military Powers (1987 CONST., Art. VII, Sec. 18)
Such power enables him to see to it that LGUs and their officials Emergency Powers
execute their tasks in accordance with law.436
Q: Is the President's power to declare a "state of national
Q: Claiming that the Boracay has become a cesspool, President emergency" similar to his power to exercise emergency
Duterte issued Proclamation No. 475 thereby ordering the powers?
temporary closure of Boracay for a maximum period of six
months in order to give way to the rehabilitation of the A: No, they are not the same. A distinction must be drawn
island. Fidel and Felix who were earning a living from the between the President's authority to declare "a state of national
tourist activities therein filed a case before the Supreme Court, emergency" and to exercise emergency powers. The President's
arguing that the closure is a form of control that unduly power to declare a "state of national emergency" is provided
impinges upon the local autonomy of the LGUs due to the under Section 18, Article VII of the 1987 Constitution, which
involvement of other government agencies in the rehabilitation does not require prior concurrence of the Congress. But the
works. Can the President order the closure of Boracay? exercise of emergency powers, such as the taking over of
privately-owned public utility or business affected with public
A: Yes. The President may validly order the temporary closure
interest, is a different matter. This requires a delegation from
of Boracay. The pressing need to implement urgent measures to
Congress."'
rehabilitate Boracay is beyond cavil from the factual milieu that
precipitated the President's issuance of Proclamation No. 475. Commander-in-Chief Powers
Certainly, the closure of Boracay, albeit temporarily, gave the
island its much-needed breather, and likewise afforded the Q: Enumerate and distinguish the three extraordinary
government the necessary leeway in its rehabilitation program. powers of the President.
Also, there was no infringement on the local autonomy of the
LGU. The fact that other government agencies are involved in A: The President as the Commander-in-Chief wields the
the rehabilitation works does not create the inference that the extraordinary powers of (a) calling out the armed forces; (b)
powers and functions of the LGUs are being encroached upon.

433 National Power Corporation Board of Directors v. Commission on Audit, G.R.

218052, 26 January 2021, as penned by Lopez, J. 437 Zabal v. Duterte, G.R. No. 238467, 12 February 2019.
436 Pimentel Jr. v. Aguirre, G.R. No. 132988, 19 July 2000. 438 David v. Macapagal-Arroyo, G.R. No. 171396, 03 May 2006.
 162 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 163
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suspending the privilege of the writ of habeas corpus; and (c) Q: Does an inaction or default on part of the Congress deny
declaring martial law.439 the Court of its power of review?
Suspension A: No. Any perceived inaction or default on the part of Congress
Declaration
Calling out of the does not deprive or deny the Court of its power to review. The
of martial
power privilege of Court can simultaneously exercise its power of review with, and
law independently from, the power to revoke by Congress.'
the writ
Characteristic Involves ordinary Involve the curtailment and Q: The 1987 Constitution gives the President a "sequence of
police action suppression of civil rights graduated power(s)". From the most to the least benign,
and individual freedoms these are: the calling out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to declare
When to Necessary to Only when there is
martial law. Senator X argues that before the President can
exercise suppress lawless ACTUAL invasion or
suspend the privilege of the writ, the President must first
violence, invasion, rebellion, and public safety
exercise his calling out power. Is X correct in his contention?
or rebellion requires it
Decide with reasons.
Nature Fully discretionary Subject to limitations A: No. "Graduation" of powers refers to hierarchy based on
on the
1. Time limit of 60 days scope and effect. It does not refer to a sequence, order, or
President,
arrangement by which the Commander-in-Chief must adhere to.
subject to the 2. Review and possible The power to choose, at least initially, which among these
limitation that revocation by the extraordinary powers to wield in a given set of conditions is a
he should act Congress judgment call on the part of the President. As the Commander-
within permissible
in-Chief, his powers are broad enough to include his prerogative
constitutional 3. Review and possible
to address exigencies or threats that endanger the government,
boundaries or in nullification by the
and the very integrity of the State.'
a manner not Supreme Court
constituting Calling Out Powers
grave abuse of
discretion Q: In one case, the Court declared that "in times of war or
national emergency, the President must be given absolute
Judicial Actual use of Sufficiency of the factual control for the very life of the nation and the government is
review the armed basis of the suspension or in great peril. The President, it intoned, is answerable only to
forces is not declaration is subject to his conscience, the People, and God." Does this mean that the
subject to judicial review court is powerless to conduct an examination with regard to
judicial review the calling-out power of the President?

440
Id.
439 Lagman v. Medialdea, G.R. Nos. 231658, 231771, & 231774, 04 July 2017. 441 Id.
 164 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 165
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A: No. While the Court considered the President's "calling-out" interest, is a different matter. This requires a delegation
445
power as a discretionary power solely vested in his wisdom, it from Congress.
stressed that "this does not prevent an examination of whether
such power was exercised within permissible constitutional Q: President Blair declared a state of emergency in the
limits or whether it was exercised in a manner constituting grave provinces of Maguindanao and Sultan Kudarat and the city
abuse of discretion." As to how the Court may inquire into the of Cotabato and ordered the deployment of the PNP and
exercise of power, the test is not correctness, but arbitrariness.' AFP personnel to undertake such measures to prevent and
suppress all incidents of lawless violence. ARNIM officials
Q: Due to the continuing threat to the security of the State in argue that the President invalidly exercised her emergency
various parts of the country, a Comprehensive National powers. Are they correct?
Security Strategy (CNSS) was implemented, empowering the
President, during a state of emergency, in the exercise of his A: No. President Blair did not proclaim a national emergency,
power of general supervision, to delegate to the heads of local but only a state of emergency. The deployment is not by itself an
government units, through an administrative issuance, the exercise of emergency powers under Article VI, Section 23 of
power to call-out the Armed Forces of the Philippines. Is the the 1987 Constitution. President Blair's call on the armed forces
said component of the CNSS constitutional?"' to prevent or suppress lawless violence springs from the power
vested in the President under Article VII, Section 18 of the 1987
A: No, the said component of the CNSS is unconstitutional. The Constitution, or the calling-out power, which does not need
calling-out powers provided in the Constitution pertains exclusively congressional authority to exercise the same.446
to the President and it cannot be used by any other person. An
exercise by another government official, even if he is a local Q: Does the declaration of a state of rebellion or the invocation
chief executive or as delegated by the President, is ultra vires.' of the calling-out power already authorize warrantless
arrests, searches or seizures, imposition of a ban on public
Q: Is the President's power to declare a "state of national peaceable assembly, impose standards on media and infringement
emergency" similar to his power to exercise emergency powers? of other constitutional rights?
A: No, they are not the same. A distinction must be drawn A: No. Under the calling-out power, the President may summon
between the President's authority to declare "a state of national the armed forces to aid in suppressing lawless violence, invasion
emergency" and to exercise emergency powers. The President's and rebellion and only involves ordinary police action. Thus,
power to declare a "state of national emergency" is provided every act that goes beyond the calling-out power is considered
under Section 18, Article VII of the 1987 Constitution, which illegal or ultra vires. The declaration of a state of rebellion
does not require prior concurrence of the Congress. But the merely declares the status or condition of public and does not
exercise of emergency powers, such as the taking over of authorize the President, the police, or the military to commit
privately-owned public utility or business affected with public violations of constitutional rights.'

442 David v. Macapagal-Arroyo, G.R. No. 171396, 03 May 2006. 445 David v. Macapagal-Arroyo, G.R. No. 171396, 03 May 2006.
443 BAR 2019. 446 Ampatuan v. Puno, G.R. No. 190259, 07 June 2011.
444 Kulayan v. Governor Tan, G.R. No. 187298, 03 July 2012. 447 David v. Macapagal-Arroyo, G.R. No. 171396, 03 May 2006.
 166 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 167
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Declaration of Martial Law and the Suspension of the 7. Upon such initiative from the President, the Congress,
Privilege of the Writ of Habeas Corpus (Including Extension voting jointly and by a vote of at least a majority of all
of Period) its members, can extend the proclamation or suspension
for such period as it may determine;"'
Q: What are the safeguards established under Art. VII, Sec.
18 of the 1987 Constitution for the declaration of martial law 8. The extension of the proclamation or suspension shall
or suspension of the privilege of the writ of habeas corpus? only be approved when the invasion or rebellion persists,
and public safety requires it;
A: The following safeguards must be observed in the declaration
of martial law or suspension of the privilege of the writ of the 9. The Supreme Court may review the sufficiency of the
habeas corpus: factual basis of the proclamation or suspension or the
extension thereof, in an appropriate proceeding filed by
1. The President may declare martial law or suspend the any citizen;
privilege of the writ of habeas corpus only when there is
invasion or rebellion, and public safety requires such 10. The Supreme Court must promulgate its decision within thirty
declaration or suspension;' (30) days from the filing of the appropriate proceeding;

2. The President's proclamation or suspension shall only be 11. Martial law does not suspend the operation of the
for a period not exceeding 60 days;' Constitution;

3. Within 48 hours from the proclamation or suspension, 12. Martial law does not supplant the functioning of the civil
the President is required to submit a report in person or courts or legislative assemblies, nor authorize the conferment
in writing to Congress;45° of jurisdiction on military courts and agencies over
civilians where civil courts are able to function;
4. The Congress has the power to revoke the proclamation
or suspension upon voting jointly and by a vote of at 13. The suspension of the privilege of the writ applies only
least a majority of all its members;' to persons judicially charged for rebellion or offenses
inherent in or directly connected with invasion; and
5. The President cannot set aside the Congress' revocation
of one's proclamation or suspension;452 14. During the suspension of the privilege of the writ, any
person arrested or detained should be judicially charged
6. The President cannot, by himself, extend the proclamation within three days, otherwise he should be released.454
or suspension. The approval of the Congress must be
secured for such purpose;

448 CONST., Art. VII, Sec. 18.

449 id
45° Id
" I Id. 453 Id.
4" id 454 Lagman v. Pimentel III, G.R. No. 235935, 06 February 2018
 168 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 169
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Q: What are the parameters that can be used to determine Q: Determine which of the following may be ordered by the
the sufficiency of the factual basis for the declaration of president under a valid declaration of martial law:
martial law and/or suspension of the privilege of the writ of
habeas corpus? (a) Arrests and seizures without judicial warrants; Ban
on public assemblies; Transfer the Court's jurisdiction
A: The parameters for determining the sufficiency of factual to a military court.
basis are as follows: (1) actual invasion or rebellion, (2) the
exercise of such power is demanded by public safety, and the (b) Transfer the Court's jurisdiction to a military court;
first two requirements must concur; and (3) probable cause for the Pass an ex-post facto law; Impose a ban on public
President to believe that there is actual rebellion or invasion.' assemblies.

(c) Impose a ban on public assemblies; Arrests and seizures

Q: What is the standard of proof that must be employed
without judicial warrants; Suspend the operation of
before the President can exercise his emergency powers?
the Constitution.
A: In determining the existence of rebellion, the President only
(d) Arrests and seizures without judicial warrants; Impose
needs to convince himself that there is probable cause or evidence
a ban on public assemblies; Take-over news media
showing that more likely than not a rebellion was committed or
and agencies and press censorship.
is being committed. To require him to satisfy a higher standard
of proof would restrict the exercise of his emergency powers.' A: (d)458
Q: Does the declaration of martial law automatically Q: Is the recommendation of the Secretary of National Defense
suspend the operation of the Constitution? law?459
necessary before the President can declare martial
A: Martial law does not suspend the operation of the A: A plain reading of Section 18, Article VII of the Constitution
Constitution, neither does it supplant the operation of civil courts shows that the President's power to declare martial law is not
or legislative assemblies. Moreover, the guarantees under the subject to any condition except for the requirements of actual
Bill of Rights remain in place during their pendency. And in invasion or rebellion and that public safety requires it. The
such instance where the privilege of the writ of habeas corpus is consultation with or recommendation of the Secretary of National
also suspended, such suspension applies only to those judicially Defense and other military officials is not a prior condition for
charged with rebellion or offenses connected with invasion." the declaration of martial law. The exercise of the Commander-
in-Chief powers rests on the President alone and no other
government official. Besides, it would be contrary to common
sense if the decision of the President is made dependent on the
recommendation of his mere alter ego.'

455 Lagman v. Medialdea, G.R. Nos. 231658, 231771, & 231774, 04 Jul) 2017. 458 David v. Macapagal-Arroyo, G.R. No. 171396, 03 May 2006.
456 1d. 459 BAR 2019.
457 Id. 46° Lagman v. Medialdea, G.R. Nos. 231658, 231771, & 231774, 04 July 2017.
 170 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 171
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Q: In reviewing the declaration of martial law or suspension Congressional Power to

of the privilege of the writ of habeas corpus, may the Court Judicial Power to Review Revoke
take into consideration the accuracy of the facts or events
that happened after such declaration? Court may strike down the Congress may revoke the
proclamation on the ground of proclamation or suspension,
A: No. The Court's power of review is confined to the lack of sufficient factual basis which revocation shall not be
sufficiency, not accuracy, of the information at hand during the set aside by the President
declaration or suspension and subsequent events do not have any
bearing insofar as the Court's review is concerned.' Court only reviews the sufficiency Congress may take into
of the factual basis of the consideration the data available
Q: In reviewing the extension of martial law, may the Court proclamation or suspension prior to and events supervening
consider the accuracy of the facts or events used by the based only the information the declaration
President to declare martial law or suspend the privilege of and the data available to the
Congress could probe deeper
the writ? President prior to or at the
and delve into the accuracy of
time of the declaration
A: No. The Court's judicial review of the Congress' extension the facts presented before it
of such proclamation or suspension is limited only to a Court is not allowed to undertake
determination of the sufficiency of the factual basis thereof. By an independent investigation
its plain language, the Constitution provides such scope of beyond the pleadings
review in the exercise of the Court's sui generis authority under
Article VII, Section 18 of the 1987 Constitution which is Passive — only initiated by the Automatic — may be activated
principally aimed at balancing (or curtailing) the power vested filing of a petition in an by Congress itself at any time
by the Constitution in the Congress to determine whether to appropriate proceeding of any after the proclamation or
extend such proclamation or suspension!' citizen suspension was made

Q: Differentiate the judicial power to review and the Q: May Congress extend the proclamation declaration of
congressional power to revoke the President's declaration of martial law or suspension of the privilege of the writ of
martial law and suspension of the privilege of the writ of habeas corpus?
habeas corpus?
A: Yes, Congress has the prerogative to extend the martial law
A: The power of the Congress to review and the power of the and the suspension of the privilege of the writ of habeas corpus
Courts to revoke the President's declaration of martial law and only under the following circumstances: (a) the extension should
suspension of the privilege of the writ of habeas corpus differ be upon the President's initiative; (b) must be grounded on the
from another in the following aspects:' persistence of the invasion or rebellion and the demands of

461
462
Lagman v. Pimentel III, G.R. No. 235935, 06 February 2018.
463
Lagman v. Medialdea, G.R. Nos. 231658, 231771, & 231774, 04 July 2017,
 172 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 173
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public safety; and (c) it is subject to the Court's review of the Q: Can the president grant executive clemency in
sufficiency of its factual basis upon the petition of any citizen!'" administrative cases?
F. Pardoning Power and Executive Clemency (1987 CONST., A: Yes, provided they are administrative cases in the Executive
Art. VII, Sec. 19) branch. The Constitution does not distinguish between which
cases executive clemency may be exercised by the President,
Scope and Limitations with the sole exclusion of impeachment cases. Similarly, if
executive clemency may be exercised only in criminal cases, it
Q: Can the pardoning power of the President be limited by would indeed be unnecessary to provide for the exclusion of
legislative action? impeachment cases from the coverage of Article VII, Section 19
A: No. The pardoning power of the President cannot be limited of the 1987 Constitution. In addition, if the President can grant
by legislative action. This doctrine of non-diminution or non- pardon to anyone who has been criminally convicted, there is
impairment of the President's power of pardon by acts of more reason to allow the same to those who were only convicted
469
Congress, specifically through legislation, was strongly adhered in administrative cases.
to by an overwhelming majority of the framers of the 1987
Q: What are the various forms of executive clemency?
Constitution when they flatly rejected a proposal to carve out an
A: Article VII, Section 19 of the 1987 Constitution provides for

I
exception from the pardoning power of the President in the form
of "offenses involving graft and corruption" that would be the following:
enumerated and defined by Congress through the enactment of
a law.465 1. Reprieve,
2. Commutation,
Q: What are the instances when the President cannot extend
pardon? 3. Pardon,
A: The instances in which the President may not extend pardon 4. Remission of fines and forfeitures, and
are the following:
5. Amnesty.
1. In impeachment cases;466
Q: Differentiate pardon from amnesty.
2. Cases that have not yet resulted in a final conviction;'
A: Pardon and amnesty differ from one another in the following
3. Cases involving violations of election laws, rules, and aspects:47°
regulations in which there was no favorable recommendation
coming from the COMELEC.468

464 id.
46' Risos-Vidal v. COMELEC, G.R. No. 206666, 21 January 2015. 468 CONST., Art. IX-C, Sec. 5.
466 CONST., Art. VII, Sec. 19. 469 Llamas v. Executive Secretary, G.R. No. 99031, 15 October 1991.
467 CONST., Art. VII, Sec. 19. 470 People v. Casido, G.R. No. 116512, 07 March 1997.
174 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 175
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PARDON AMNESTY I lr may not delegate the authority to pardon prisoners under the
doctrine of qualified political agency.47
Granted by the President alone Granted by the President with
the concurrence of Congress G. Diplomatic Power (1987 C0NST., Art. VII, Secs. 16 and 21)
Not a subject of judicial Considered a public act, Q: The Philippines and the Republic of Kroi Sha established
notice, must be proven courts may take judicial notice diplomatic relations and immediately their respective Presidents
May only be granted to a Granted to classes of persons signed the following:
person after conviction or communities who may be 1. Executive Agreement allowing the Republic of Kroi
guilty of political offenses, Sha to establish its embassy and consular offices within
generally before or after the Metro Manila; and
institution of the criminal
prosecution and sometimes after 2. Executive Agreement allowing the Republic of Kroi
conviction. Sha to bring to the Philippines its military complement,
warships, and armaments from time to time for a
Looks forward and relieves the Looks backward, it so overlooks period not exceeding one month for the purpose of
offender from the consequences and obliterates the offense training exercises with the Philippine military forces
of an offense of which he has with which he is charged, that and exempting from Philippine criminal jurisdiction
been convicted (limited to the person released by amnesty acts committed in the line of duty by foreign military
punishment alone) stands before the law precisely personnel, and from paying custom duties on all the
as though he had committed goods brought by said foreign forces into Philippine
no offense territory in connection with the holding of the activities
authorized under the said Executive Agreement.
Q: Can the conferment by the Director General of the Senator Maagap questioned the constitutionality of the said
Bureau of Corrections alone, under the doctrine of qualified Executive Agreements and demanded that the Executive
political agency, of a colonist status, which entitles a prisoner Agreements be submitted to the Senate for ratification
to a modification or reduction of sentence under Act No. pursuant to the Philippine Constitution. Is Senator Maagap
2489, reduce the prisoner's sentence under the law? correct? Explain.472
A: No, the act of classification as a penal colonist requires
A: Senator Maagap is wrong. Executive Agreements need not
executive approval. The reduction of a prisoner's sentence is a
be submitted to the Senate for its concurrence, under Article VII,
partial pardon and the Constitution reposes in the President alone
Section 21 of the Constitution.473 This would be true with respect
the power and exclusive prerogative to extend the same. Since
the President is required by the Constitution to act in person, he

471 Sps Maelang, Sr, v. De Lima, G.R. No. 214218, 21 September 2022.
472 BAR 2015.
473 China National Machinery & Equipment Corporation v. Sta. Maria, G.R. No.
185572, 07 February 2012.
176 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 177
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to both Executive Agreements in the problem, including the Q: What are the guidelines that may be used by the Court
second one, which allows the Republic of Kroi Sha to bring to in reviewing the validity of President's Withdrawal from
the Philippines its military complements, warships, and International Agreements?
armaments from time to time. Under Article XVIII, Section 25
of the 1987 Constitution, only such agreements with the United A: In Sen. Francis Pangilinan v. Alan Peter Cayetano,479 the
States of America would be required to be the subject of a treaty Court provided for a set of guidelines concerning the President's
which would need the concurrence of the Senate. It should be withdrawal from International Agreements:
noted that, under the Constitution, the Senate merely provides its 1. The president enjoys some leeway in withdrawing from
concurrence to, and does not ratify, treaties. It is the President agreements which he determines to be contrary to the
who ratifies treaties.474 Constitution or statutes.
Q: How do treaties differ from executive agreements? 2. The president cannot unilaterally withdraw from agreements
which were entered into pursuant to congressional imprimatur.
A: Treaties are distinguished from executive agreements, as
follows: (a) treaties are international agreements which involve 3. The President cannot unilaterally withdraw from international
political issues or changes of national policy and of a permanent agreements where the Senate concurred and expressly
character; while executive agreements are international agreements; declared that any withdrawal must also be made with its
(b) treaties require formal documents and ratification, whereas concurrence.
executive agreements become binding through executive action.475
H. Power relative to Appropriation Measures (1987 CONST.,
Q: How can a treaty be given domestic effect under Art. VI, Secs. 25(5) and 27(2); Art. VII, Sec. 20)
Philippine law?
Q: What are the requisites for a valid transfer of appropriated
A: Treaties and international agreements shall be valid and funds under Art. VI, Sec. 25(5) of the 1987 Constitution?
effective upon concurrence of at least 2/3 of all the Members of
the Senate.476 However, the foreign loan agreements require the A: Although executive discretion and flexibility are necessary
prior concurrence of the Monetary Board,47 and treaties involving in the execution of the budget, any transfer of appropriated funds
military bases, troops or facilities, must be duly concurred in by should conform to Art. VI, Sec. 25(5) of the 1987 Constitution
the Senate and, when Congress requires, be ratified by a majority which requires:
of the votes cast by the people in a national referendum, and
1. There must be a law authorizing the President, President
recognized as a treaty by the other contracting State.478
of Senate, Speaker of the House, Chief Justice, and
Heads of Constitutional Commissions to transfer funds
within their respective offices;

474 Pimentel v. Executive Secretary, G.R. No. 158088, 16 July 2008. 2. The funds to 'be transferred are savings generated from
475 Commissioner of Customs v. Eastern Sea Trading, G.R. No. L-14279, 31 October the appropriations for their respective offices; and
1961.
476 CONST., Art. VII, Sec. 21.
477 CONST., Art. VII, Sec. 20.
478 CONST., Art. XVIII, Sec. 25. 479 G.R. No. 238875, 16 March 2021.
 178 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 179
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3. The purpose of the transfer is to augment an item in the 1987 Constitution. By providing the President, Senate President,
general appropriations law for their respective offices.' House Speaker, Chief Justice, and the heads of the Constitutional
Commissions the authorization to augment any item in the
Q: What are the principles in ascertaining the meaning of appropriations act "for their respective offices", the Constitution
"savings" in relation to Art. VI, Sec. 25(5) of the 1987
has delineated borders between their offices such that funds
Constitution? appropriated for one office are prohibited from crossing over to
A: To identify the meaning of "savings", one must take into another office even in the guise of augmentation of a deficient item."
consideration the following principles: Q: The President decided not to release the funds authorized
1. Congress wields the "power of the purse", as it decides under the General Appropriations Act for the construction
how the budget will be spent and what projects to fund of a new bridge in Iloilo City because of the persistent reports of
and how much shall be spent for each project; widespread irregularities and shenanigans involving the alleged
ghost projects with which the pork barrel funds of members
2. The Executive is expected to faithfully execute the of Congress had been associated.
General Appropriations Act and to spend the budget in
accordance with the appropriation law; The President explained that such a project, which he thought
was unnecessary since there was an old bridge nearby that
3. In recognizing the President's power to augment operative was still functional, should be abandoned in order to properly
under the appropriations law, Congress recognizes the conserve and preserve the limited funds of the government
need for flexibility in budget execution, but Congress and to prevent further public mistrust. He subsequently
does not allow the Executive to override its authority designated the funds as "saving" and utilized them to construct
thereby exceeding the delegated authority; and a drug recovery center in Caloocan City.
4. Savings should be actual, real, or substantial or something Does the President have such authority? Explain.
that exists presently in fact and not hypothetical or
potential. Savings should therefore be construed strictly A: No. The President does not have such authority. This violates
against expanding the scope of the power to augment."' Article VI, Section 25(5) of the 1987 Constitution which states
that, "[n]o law shall be passed authorizing any transfer of
Q: The House of Representatives requested the President to appropriations; however, the President, the President of the
grant their office an augmentation for the building of their e- Senate, the Speaker of the House of Representatives, the Chief
library and information technology equipment as it may Justice of the Supreme Court, and the heads of Constitutional
result to serious deterioration. The President obliged. Is the Commissions, may, by law, be authorized to augment any item
augmentation valid? in the general appropriations law for their respective offices from
savings in other items of their respective appropriations."
A: No, the augmentation done by the President is a cross-border
augmentation and is prohibited under Art. VI, Sec. 25(5) of the

48° Araullo v. Aquino III, G.R. No. 209287, 01 July 2014. "2 Id.
481 Id.
180 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 181
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The Supreme Court also ruled in Sanchez v. COA483 that the contracted or guaranteed by the Government or government-
President cannot indiscriminately transfer funds from one department, • owned and controlled corporations which would have the effect
bureau, office or agency of the Executive Department to any of increasing the foreign debt, and containing other matters as
program, project or activity of any department, bureau or office may be provided by law.
included in the General Appropriations Act or approved after its
enactment, without regard to whether the funds to be transferred Q: Should the Monetary Board (MB) have given its full
are actually savings in the item from which the same are to be approval to a foreign loan before its execution to comply with
taken, or whether or not the transfer is for the purpose of the prior concurrence requirement under Article VII, Section
augmenting the item to which the transfer is to be made. 20 of the 1987 Constitution?

Q: The President may contract or guarantee foreign loans A: No, the rigid interpretation of "prior concurrence" should not
on behalf of the Republic of the Philippines only upon prior be the case. The prior concurrence requirement is enabled through a
concurrence of the: more detailed and elaborate procedure as may be provided by
laws and regulations. It is only the approval-in-principle which
(a) House of Representatives; entails prior action from the MB, but which nevertheless allows
negotiations to proceed with the indicative financial terms and
(b) Senate; purpose of the loan as starting points. After negotiations, the
(c) Central Bank; parties may already finalize the terms and sign the same, subject
to the fulfillment of certain conditions imposed by the approval-
(d) Monetary Board.484 in-principle before the MB grants its final approval.'
A: (d)485 I. Veto Power (1987 CONST., Art. VI, Sec. 27)
Q: What are the requisites for the President to contract and Q: How can the Congress override the veto of the President?
guarantee foreign loans?
A: Upon the transmittal of the President of the vetoed bill to the
A: Article VII, Section 20 of the 1987 Constitution provides the House where it originated, the latter can reconsider the decision
following limitations: of the President and vote on the same again. If 2/3 of the
1. It must be with prior concurrence with the Monetary Board. Members of such House agree to pass the bill, it shall be sent,
together with the objections, to the other House by which it shall
2. It is subject to limitations as may be provided by law. likewise be reconsidered, and if approved by two-thirds of all the
Members of that House, it shall become a law."'
The Monetary Board shall, within thirty days from the end of
every quarter of the calendar year, submit to the Congress a Q: Congress passed a bill appropriating P50 million in
complete report of its decision on applications for loans to be assistance to locally based television stations subject to the
condition that the amount would be available only in places

483 G.R. No. 127545, 23 April 2008.

484 BAR 2012. 486 Colmenares v. Duterte, G.R. No. 245981 & 246594, 9 August 2022.
485 CONST., Art. VII, Sec. 20. 481 CONST., Art. VI, Sec. 27(1).
182 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 183
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where commercial national television stations do not operate. provisions in a general appropriation bill, such provisions must
The President approved the appropriation but vetoed the be treated as "item" for purposes of the President's item veto
condition. Was the veto valid? power over general appropriation bills."'
(a) Yes, since the vetoed condition may be separated Q: What is "executive impoundment"?
from the item.
A: Impoundment refers to a refusal by the President, for
(b) Yes, the President's veto power is absolute. whatever reason, to spend funds made available by Congress. It
(c) No, since the veto amounted to a suppression of the is the failure to spend or obligate budget authority of any type.'
freedom to communicate through television.
J. Residual Power (E.O. No. 292, Book III, Title I, Chapter
(d) No, since the approval of the item carried with it the 7, Sec. 20)
approval of the condition attached to it.488
Q: What are the President's residual powers?
A: (d) No, since the approval of the item carried with it the
approval of the condition attached to it.489 A: Unless Congress provides otherwise, the President shall
exercise such other powers and functions vested in the President
Q: As a general rule, the President has to veto the entire bill which are provided for under the laws and which are not
and not merely the parts thereof. What are the exceptions to specifically enumerated above, i.e., power of control of all the
this rule? executive departments, bureaus, and offices, ordinance power, power
over aliens, power of eminent domain, escheat, land reservation
A: The President may veto any particular item or items in the and recovery of ill-gotten wealth, power of appointment, and
following: general supervision over local governments, or which are not
delegated by the President in accordance with law.493
1. Appropriations;
2. Revenue; or Q: Does the President have the power to prohibit a dictator
who voluntarily exiled to another country after he was
3. Tariff bill.' ousted during EDSA from returning to the country?

Q: Explain the doctrine of inappropriate provision. A: Yes. While Article VII of the 1987 Constitution specifically
enumerates the powers of the President, it is well-settled that
A: Congress cannot by law establish conditions for and regulate such list is not exclusive. Executive power is more than the sum
the exercise of powers of the President given by the Constitution of specific powers so enumerated. Whatever inherent power of
for that would be an unconstitutional intrusion into executive the government that is neither legislative nor judicial has to be
prerogative. As such, when the legislature inserts inappropriate executive. In this case, the power involved is the President's

491 Philippine Constitution Association (PHILCONSA) v. Enriguez, G.R. No. 113105, 19

488 BAR 2011. August 1994.
489 Gonzales v. Macaraig, Jr., G.R. No. 87636. 19 November 1990. 4" Id.
490 CONST., Art. VI, Sec. 27(2). 493 Executive Order No. 292, Book 111, Title I, Chapter 7, Sec. 20.
 184 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 185
ON POLITICAL LAW

residual power to protect the general welfare of the people. It is (c) Act as President until the President-elect shall have
founded on the duty of the President, as steward of the people qualified
borne by its duty to preserve and defend the Constitution. It also
may be viewed as a power implicit in the President's duty to take (d) Remain as Vice President
care that the laws are faithfully executed. Thus, it is subject to 4
(e) Serve as President for the unexpired term.
the exercise of its discretion.494
A: (a) The Vice President-elect shall become the President.'
K. Removal from Office (1987 CONST., Art. XI, Sec. 2)
Q: If a President shall not have been chosen, the Vice
Q: How can a President or Vice President be removed from President-elect shall:
office?
(a) Become the President
A: A President or Vice President may only be removed from
office on impeachment for and conviction of only the following (b) Act as President until a President have been chosen
impeachable offenses: and qualified

1. Culpable violation of the Constitution; (c) Act as President until the President-elect shall have
qualified
2. Treason;
(d) Remain as Vice President
3. Bribery;
(e) Serve as President for the unexpired term.
4. Graft and Corruption;
A: (a) The Vice President-elect shall act as President until a
5. Other High Crimes; and President have been chosen and qualified.497
6. Betrayal of Public Trust. 495 Q: If a President-elect fails to qualify, the Vice President-
elect shall:
L. Rules of Succession (1987 CONST., Art. VII, Secs. 7-12)
(a) Become the President
Q: If the President-elect, at the beginning of his term,
becomes permanently disabled, the Vice President-elect shall: (b) Act as President until a President have been chosen
and qualified
(a) Become the President
(c) Act as President until the President-elect shall have
(b) Act as President until a President have been chosen qualified
and qualified

494 Marcos v. Manglapus, G.R. No. 88211, 15 September 1989. 496 CONST., Art. VII, Sec. 7.
495 CONST., Art. XI, Sec. 2. 497 CONST., Art. VII, Sec. 7.
 186 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 187
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(d) Remain as Vice President Q: What happens when the position of Vice President
becomes vacant for the time that he was elected?
(e) Serve as President for the unexpired term.
A: (c) The Vice President shall act as President until the A: Article VII, Section 9 of the 1987 Constitution provides that
President-elect shall have qualified.' the President shall nominate a Vice-President from among the
members of the Senate and the House of Representatives who
Q: If the President-elect, at the beginning of his term dies, • shall assume office upon confirmation by a majority vote of all
the Vice President-elect shall: the Members of both Houses of the Congress, voting separately.

(a) Become the President Q: Three months before the next Presidential elections, the
sitting President and Vice President perished in a plane
(b) Act as President until a President have been chosen
crash. However, contrary to what is provided in Art. VII,
and qualified
Sec. 10 of the Constitution, the Congress did not call for any
(c) Act as President until the President-elect shall have special elections. Ding is contesting this, arguing that
qualified according to the plain meaning of the Constitutional
provision, it is the duty of Congress to provide for such
(d) Remain as Vice President elections and to ensure that it would not be suspended given
the tight timeline before the next elections. Is Ding correct?
(e) Serve as President for the unexpired term.
A: No, Ding is not correct. While it is true that the Constitution
A: (a) The Vice President-elect shall become the President.499
mandated the Congress to call for a special election should a
Q: In case of death, permanent disability, removal from office, vacancy occurs with the position of the President and the Vice
or resignation of the President, the Vice President shall: President, it also provided that no special election shall be called
if the vacancy occurs within eighteen (18) months before the
(a) Become the President date of the next presidential election. In this case, the vacancy
occurred three (3) months before the next Presidential elections
(b) Act as President until a President have been chosen
hence there is no need for a special election.50'
and qualified
(c) Act as President until the President-elect shall have Q: Will the adjournment of the regular session of the
qualified Congress result in the termination of the canvassing of votes
being done by the Joint Committee of Congress?
(d) Remain as Vice President
A: No. While the legislative functions terminate upon the final
(e) Serve as President for the unexpired term. adjournment of its regular session, the same will not affect its
non-legislative functions such that being the National Board of
A: (e) Serve as President for the unexpired term.50°
Canvassers. It cannot adjourn sine die until it has accomplished

498 CONST., Art. VII, Sec. 7. 5°° CONST., Art. VII, Sec. 8.
499 CONST., Art. VII, Sec. 7. ' 01 CONST., Art. VII, Sec. 10.
I
 188 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 189
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410
its constitutionally mandated tasks. Not even a change in Moreover, his contention as to being a president on leave
membership will affect its authority to act as a board until it has pursuant to Article VII, Section 11 of the 1987 Constitution has
accomplished its purpose.502 no leg to stand on considering that both the House of
Representatives as well as the Senate already passed resolutions
Q: Don Marsing was elected as President and was in fact, 503
recognizing Dona Mokang as sitting President.
loved by the masses. However, he was later ousted due to
several allegations of corruption as well as the continued Q: Does the Supreme Court have jurisdiction to review and
unrest that plagued the country which triggered another revise the decision of both Houses of Congress recognizing
People Power Revolution. Due to the growing tensions, Don another person as a sitting president of the Philippines
Marsing decided to evacuate Malacariang and surrender and despite the transmittal by the previous president of a letter
requested for the peaceful and orderly transfer of power. At indicating his temporary inability to discharge his functions?
12 noon of the same day, Doria Mokang was proclaimed as
the new president of the country. Several weeks later, Don A: No, the Court cannot review and revise the decision of both
Marsing claim that he never resigned from his position and Houses considering that the issue involved pertains to a matter,
was merely a president-on-leave. He also claims that he never the full discretionary authority has been delegated to the legislature.
wrote any formal letter of resignation before he evacuated Without a doubt, the question is political in nature and addressed
Malacariang. Is Don Marsing correct in his contentions? solely to Congress by constitutional fiat. It cannot be decided by
this Court without transgressing the principle of separation
A: No, Don Marsing's contentions are untenable. It is well- of powers.'"
settled that two elements must concur before one may be considered
as resigned: (1) there must be an intent to resign and (2) such Q: Enumerate the governing rules in case of temporary
intent is coupled by acts of relinquishment. The validity of a inability of the President to discharge his functions.
resignation is not government by any formal requirement as to
A: Article VII, Section 11 of the 1987 Constitution provides for
form. It can be oral. It can be written. It can be express. It can be
the governing rules in a situation where a President is unable to
implied. As long as the resignation is clear, it must be given legal
discharge his functions, to wit:
effect. In the case at bar, the totality of prior, contemporaneous,
and posterior facts and circumstantial evidence would easily 1. The President shall transmit to the President of the
reveal that Don Marsing resigned from his post when he Senate and Speaker of the House a written declaration
evacuated Malacatiang. First, a perusal of the diary of the then- indicating his inability to discharge his powers and
Executive Secretary which was serialized in the Philippine Daily duties of his office. The Vice President will then serve as
Inquirer, showing the last days of Don Marsing as president acting president until the President submits a written
would reveal that he did not show any defiance to the request for declaration to the contrary.
a peaceful and orderly transfer of power. Second, his act of
leaving Malacatiang as well as his succeeding press-release
indubitably show that he is resigning from his position.

502 G.R.No. 146710-15, 02 March 2001.

Pimentel Jr. v. Joint Committee of Congress to Canvass the Votes Cast, G.R. No. 5°3 Estrada v. Macapagal-Arroyo,
163783, 22 June 2004. 5" Id.
190 COMPENDIOUS BAR REVIEWER EXECUTIVE DEPARTMENT 191
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2. The majority of all members of the Cabinet may also the President were merely based from online news articles, which
transmit their written declaration that the President is have no probative value and are treated as "hearsay evidence,
unable to discharge the powers and duties of his office twice removed, and are thus without any probative value, unless
which will trigger the immediate assumption of the Vice offered for a purpose other than proving the truth of the
President of the position of the Acting President. However, matter asserted".
the President may transmit a written declaration that no
such inability exists which will allow the immediate
reassumption of his duties. Nevertheless, in case the
majority of all the cabinet members insist on the inability
of the President within five days, the Congress shall
convene without need of a call to decide the issue.
3. If the Congress, within ten days after receipt of the last
written declaration if it is in session and within twelve
days if not in session, determine by a 2/3 vote of both
Houses, voting separately, that the President is unable to
discharge the powers and duties of his office, the Vice
President will then act as President, otherwise, the
President shall continue exercising the powers and duties
of his office.

Q: During the height of COVID-19 pandemic, President

Dory has been consistent in addressing the nation via live
television. However, several questions regarding his state of
health surfaced due to his pale and sickly appearance. Online
articles started to tackle as to what really is the condition of
the President. This prompted Don to file a mandamus before
the Court, relying on Article VII, Sec. 12 of the 1987
Constitution and praying that the President be compelled to
disclose his true health condition. Will the petition prosper?
A: No, the petition for mandamus will not prosper. In the case
of Dino de Leon v. Rodrigo Duterte,' the Court dismissed the
petition on the ground that based from the allegations in the
complaint, the petitioner failed to establish the existence of a
clear right that was violated since the claims about the illness of

505 G.R. No. 252118, 08 May 2020.

 JUDICIAL DEPARTMENT 193

The Supreme Court, whether sitting en banc or in Division, acts

IV. Judicial Department as a collegial body as it exercises judicial power through the
collective action of its individual members.51 In addition, although
A. Definition of Judicial Power (1987 CONST., Art. VIII, the Chief Justice is primus inter pares, he cannot legally decide a
Sec. 1) case on his own because of the Court's nature as a collegial body.
Neither can the Chief Justice, by himself, overturn the decision
Q: What is judicial power?
of the Court, whether of a division or the en banc.
A: Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally B. Judicial Review
demandable and enforceable, and to determine whether there has
Q: What is judicial review?
been a grave abuse of discretion on the part of any branch or
instrumentality of the Government.' A: Judicial review is the power of the courts to test the validity
of executive and legislative acts in light of their conformity with
Q: What is the concept of expanded judicial power under the Constitution.'"
the 1987 Constitution?"'
Q: TRUE OR FALSE then support your answer. The power
A: Art. VIII, Sec. 1 of the 1987 Constitution has expanded the
of judicial review by the Courts is an assertion of their
scope of judicial power from its traditional understanding.
superiority over the executive and the legislative branch.
Courts are not only expected to "settle actual controversies
involving rights which are legally demandable and enforceable," A: False. The Court, in exercising their judicial power, does not
but are also empowered to determine if any government branch assert superiority over the two co-equal branches. Judicial power
or instrumentality has acted beyond the scope of its powers, such merely reaffirms the supremacy of the Constitution, and it is
that there is grave abuse of discretion.'" incumbent upon the Judicial Department to ensure that it is
always upheld.'
Q: To whom is judicial power vested?
1. Requisites
A: It is vested in one Supreme Court and in such lower courts as
may be established by law.509 Q: Petitioners A, B and C were officers of MIAA who were
held to be personally liable for disbursements disallowed in
an audit. When MIAA tried to enforce payments against the
petitioners, it sought clarification as to the nature of the
liability of the petitioners. Responding to this, COA pointed
out that the liability as well as the disallowances is solidary
506 CONST., Art. VIII, Sec. 1.
507 BAR 2015.
509
Kilusang Mayo Uno et al v. Hon. Aquino III et al., G.R. No. 210500, 02 April 2019.
509
CONST., Art. VIII, Sec. 1. 510
Flight Attendants and Stewards' Association of the Philippines v. PAL, G.R. No.
178083, 13 March 2018.
51 1
Angara v. Electoral Commission, G.R. No. L-45081, 15 July 1936.
192 512 Id.
194 COMPENDIOUS BAR REVIEWER JUDICIAL DEPARTMENT 195
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pursuant to Sec 16 of COA Circular 006-09. However, before 4. The decision on the constitutional or legal question must
MIAA can fully enforce the payments, some of the concerned be necessary to the determination of the case itself.'
officials already resigned. Thus, MIAA proceeded to withhold
the payment of the salaries of officials who remained as a. Actual Case or Controversy
MIAA employees including herein petitioners. Aggrieved,
petitioners sought the nullification of Section 16.3 of COA Q: When does an actual case or controversy exist?
Circular No. 006-09 for being "unbearable to human conscience A: An actual case or controversy exists when there is a conflict
and for being excessive and unreasonable." Should the COA of legal rights or an assertion of opposite legal claims, which can
Circular be declared unconstitutional? be resolved on the basis of existing law and jurisprudence. A
A: No. The averments of the petitioners that the assailed circular is justiciable controversy admits of specific relief through a decree
"excessive, unreasonable and unbearable to human conscience" that is conclusive in character, whereas an opinion only advises
are vague accusations that equate to mere conclusions of law. It what the law would be upon a hypothetical state of facts.515
must be noted that every statute or regulation is presumed to be
Q: When may a case be considered ripe for judicial
valid. To rule otherwise would require a clear and unequivocal
determination?
breach of the Constitution and not one that is doubtful, speculative,
or argumentative. One must be able to point out a clear A: A case is ripe for adjudication when the act being challenged
constitutionally protected right and allege the facts constituting has had a direct adverse effect on the individual challenging it.
the breach with particularity. Certainly, reliance on emphatic, but Something must have been accomplished or performed by either
unfounded legal conclusions and motherhood statements coupled branch of government before a court may come into the picture,
with the failure to specify the constitutional right or provision and a petitioner must allege the existence of an immediate or
violated shall not be sufficient to overcome the presumption of threatened injury to him as a result of the challenged action.516
validity in favor of a statute or regulation.'
b. Proper Party
Q: What are the requisites for the exercise of judicial review?
Q: Who is a proper party?
A: The requisites of judicial review are:
A: A proper party is one who has sustained or is in immediate
1. There must be an actual case or controversy; danger of sustaining an injury due to the act complained of.51
2. The question must be raised by the proper party;
3. The question must be raised at the earliest opportunity; and

514 Anti-Trapo Movement of the Philippines v. Land Transportation Office, G.R.

231540, 27 June 2022.
5 15Guingona v. Court of.-Ippeals, G.R. No. 125532, 10 July 1998.
516 Province of North Cotabato v. Government, G.R. No. 183591, 14 October 2008.
513 Lozada v. Commission on Audit, G.R. No. 230383, 13 July 2021. 517 Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618, 23 November 2010.
 196 COMPENDIOUS BAR REVIEWER JUDICIAL DEPARTMENT 197
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Q: What is the "direct injury" test in relation to legal standing? 0 is limited only to the civil aspect of the case. Only the OSG may
question the judgments or orders involving the criminal aspect of
A: It is a test by which a party who impugns the validity of a
the case or the right to prosecute in proceedings before the
statute must have a personal and substantial interest in the case Supreme Court and the Court of Appeals:521
such that he has sustained or will sustain direct injury as a
result.518 This is to prevent any person from seeking judicial Q: What is the rationale behind the rule regarding the
interference in any official policy or act with which he disagreed private complainant's legal standing in criminal cases?
with, and thus hinders the activities of governmental agencies
engaged in public service.' A: The rationale behind this rule is that in a criminal case, the
State is the party affected by the dismissal of the criminal action
Q: What are the rules concerning the standing of taxpayers, and not the private complainant. The interest of the private
voters, concerned citizens, and legislators? offended party is restricted only to the civil liability of the
accused. In the prosecution of the offense, the complainant's role
A: They may be accorded standing to sue, provided that the
is limited to that of a witness for the prosecution such that when
cases involve constitutional issues and: a criminal case is dismissed by the trial court or if there is an
1. For taxpayers: There must be a claim of illegal disbursement acquittal, an appeal on the criminal aspect may be undertaken
of public funds or that the tax measure is unconstitutional; only by the State through the OSG. The private offended party
may not make such an appeal but may only do so to the civil
2. For voters: There must be a showing of obvious interest aspect of the case. Differently stated, the private offended party
in the validity of the election law in question; may file an appeal without the intervention of the OSG, but only
insofar as the civil liability of the accused is concerned. Also, the
3. For concerned citizens: There must be a showing that the
private complainant may file a special civil action for certiorari
issues raised are of transcendental importance which
even without the intervention of the OSG, but only to the end of
must be settled early; and
preserving his or her interest in the civil aspect of the case.'
4. For legislators: There must be a claim that the official
action complained of infringes upon their prerogatives as c. Raised at the Earliest Possible Opportunity
legislators."' Q: What does "earliest possible opportunity" mean?
Q: In criminal proceedings, does the private complainant A: The earliest opportunity to raise a constitutional issue is in the
have legal standing to assail judgments or orders involving pleadings before a competent court that can resolve the same,
the criminal aspect of the case or the right to prosecute? such that, if it was not raised in the pleadings before said
A: No, unless such is made with the conformity of the Office of competent court, it cannot be considered at the trial, and, if not
the Solicitor General (OSG). The private complainant's interest considered in the trial, it cannot be considered on appeal."'

518 Id., citing People v. Vera, G.R. No. L-45685, 16 November 1937. 521 Austria v. G.R. No. 205275, 28 June 2022 (M. Lopez, J.).
519 Macalintal v. Presidential Electoral Tribunal, G.R. No. 191618, 23 November 2010. '22 Id.
523
52° David v. Macapagal-Arroyo, G.R. No. 171396, 03 May 2006. Matibag v. Benipayo, G.R. No. 149036, 02 April 2002.
 198 COMPENDIOUS BAR REVIEWER JUDICIAL DEPARTMENT 199
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d. Necessary to the Determination of the Case Itself Q: Does the Political Question Doctrine bar the Court from
exercising its power of review over executive and legislative acts?
Q: Explain the requisite that the constitutional issue must be
the lis mota of the case. A: No. The Constitution has narrowed down the reach of this
doctrine when it provided for the expanded the power of judicial
A: The Supreme Court refrains from resolving any constitutional review of this court not only to settle actual controversies
issue unless the constitutional question is the lis mota of the case. involving rights which are legally demandable and enforceable
Lis mota literally means "the cause of the suit or action." This
but also to determine whether there has been a grave abuse of
last requisite of judicial review is simply an offshoot of the discretion amounting to lack or excess of jurisdiction on the part
presumption of validity accorded the executive and legislative
of any branch or instrumentality of government.'
acts of our co-equal branches of the government. Ultimately, it is
rooted in the principle of separation of powers. Given the b. Moot Questions
presumed validity of an executive act, the petitioner who claims
otherwise has the burden of showing first that the case cannot be Q: Employees of the Philippine Orthopedic Center (POC)
resolved unless the constitutional question he raised is filed a special civil action for Certiorari and Prohibition
determined by the Court.524 seeking to annul and set aside the planned privatization and
commercialization of the POC as well as the MPOC Project
2. Exceptions granted to respondents. This MPOC Project will entail the
building, financing, and operating of a facility for a period of
a. Political Questions
25 years and transfer of the same to DOH after the period
Q: X filed a Petition for Certiorari before the Supreme expired. This project will be implemented through a Build-
Court, asking that Articles 1 and 2 of the Family Code be Operate-and-Transfer (BOT) Law. However, after the said
declared as unconstitutional as it denies to the people the case was filed to the Court, private respondents served a Notice
right to marry the same sex. The Civil Registrar General of Termination to the DOH. Should the case be dismissed on
claims that the issue raised is a political question since the the ground of mootness?
legal definition of marriage is a policy issue for the Congress A: Yes. The case should be dismissed for being moot and academic.
to decide. Explain the Political Question Doctrine. A case or issue is considered moot and academic when it ceases
A: These are questions which, under the Constitution, are to be to present a justiciable controversy by virtue of supervening
decided by the people in their sovereign capacity, or with regard events that renders adjudication of the case or declaration on the
to which full discretionary authority has been delegated to the issue useless or of no practical value. The judgment is considered
legislative or executive branch of the government.' with no practical legal effect because it cannot be enforced. In
this case, since the BOT agreement has been terminated by the
private respondents, the issue has become moot and academic
and should be dismissed.'

524 General v. Urro, G.R. No. 191560, 29 March 2011. 526 Id.
525 Falcis III v. Civil Registrar General, G.R. No. 217910, 03 September 2019. '27 Cervantes v. .4quino III, G.R. No. 210805, 11 May 2021.
 200 COMPENDIOUS BAR REVIEWER JUDICIAL DEPARTMENT 201
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Q: What are the instances when the Court will take cognizance unconstitutionality will impose an undue burden on those who
of moot and academic cases? have relied on the invalid law.'3°
A: As a rule, Courts will decline jurisdiction and no longer Q: Is the doctrine of operative fact applicable in all cases?
consider questions in which no actual interests are involved.
However, this is subject to exceptions namely: A: No. In applying the doctrine of operative fact, courts ought
to examine with particularity the effects of the already accomplished
1. Grave violation of Constitution; acts arising from the unconstitutional statute, and determine, on
2. Exceptional character of situation and when paramount the basis of equity and fair play, if such effects should be
allowed to stand. It should not operate to give any unwarranted
public interest is involved;
advantage to parties, but merely seeks to protect those who, in
3. When the constitutional issue raised requires formulation good faith, relied on the invalid law.531
of controlling principles to guide the bench, the bar, and
the public; and C. Fiscal Autonomy (1987 CONST., Art. VIII, Secs. 3 and 10)

4. When the case is capable of repetition yet evading review.' Q: According to Art. VIII, Sec. 3 of the 1987 Constitution,
the Judiciary shall enjoy fiscal autonomy. What does the
c. Advisory Opinions term fiscal autonomy signify? Explain your answer.532

Q: May courts issue advisory opinions? A: As envisioned in the Constitution, the fiscal autonomy
enjoyed by the Judiciary, the Civil Service Commission, the
A: The Court generally declines to issue advisory opinions or to
Commission on Audit, the Commission on Elections, and the
resolve hypothetical or feigned problems, or mere academic
Office of the Ombudsman contemplates a guarantee on full
questions. The limitation of the power of judicial review to actual
flexibility to allocate and utilize their resources with the wisdom
cases and controversies assures that the courts will not intrude into
and dispatch that their needs require. It recognizes the power and
areas specifically confined to the other branches of government.'
authority to levy, assess and collect fees, fix rates of compensation
3. Operative Fact Doctrine not exceeding the highest rates authorized by law for compensation
and pay plans of the government, and allocate and disburse such
Q: What is the doctrine of Operative Fact? sums as may be provided by law or prescribed by them during
the discharge of their functions.'
A: The Operative Fact doctrine nullifies the effects of an
unconstitutional law or an executive act by recognizing that the
existence and validity of a statute prior to a determination of
unconstitutionality is an operative fact and may have consequences
that cannot always be ignored. It applies when a declaration of
•
Film Development Council v. Colon Heritage, G.R. No. 203754, 15 October 2019.
530

528 Professional Regulation Commission v. Philippine Society of Mechanical Engineers, " I Id.
■
G.R. No. 254282, 14 September 2021. 532 BAR 2017.
529 PHILCONSA v. Philippine Government, G.R. No. 218406, 19 November 2016. 533 Bengzon v. Drilon, G.R. No. 103524, 15 April 1992.
202 COMPENDIOUS BAR REVIEWER JUDICIAL DEPARTMENT 203
ON POLITICAL LAW

Q: What documents or communications are covered by A: Article VIII, Section 7 of the 1987 Constitution provides for
judicial privilege? following qualifications:
A: The following documents and communications are covered 1. A natural-born citizen;
by the judicial privilege in which no Justice or official or
employee of the Judiciary may be questioned and are considered 2. At least 40 years of age;
exempt from any compulsory processes including the power of 3. Served as a judge of a lower court or engaged in the
the Congress to conduct an inquiry in aid of legislation: practice of law for at least 15 years; and
1. Court actions (result of raffle of cases, actions taken by 4. A person of proven competence, integrity, probity, and
the Court on each case included in the agenda except independence.
when the party litigant requests information on the result
of the raffle of cases); Q: Does the failure to file Statement of Assets, Liabilities
and Net-worth (SALN) makes a Supreme Court justice
2. Court deliberations or deliberations of the Members in court
ineligible for his position?
sessions on cases and matters pending before the Court;
A: Yes. Failure to file the SALN is clearly a violation of the
3. Court records which are "predecisional" and "deliberative"
law. It disregards the requirement of transparency as a deterrent
in nature (documents and other communications which
to graft and corruption. For these reasons, a public official who
are part of or related to the deliberative process);
has failed to comply with the requirement of filing the SALN
4. Confidential information secured by justices, judges, cannot be said to be of proven integrity and the Court may
court officials and employees during their official functions, consider him/her disqualified from holding public office.'
mentioned in (2) and (3) above, remain privileged even
after their term of office; Q: Can a Supreme Court Associate Justice who turns seventy
years old on the same date as an en bane session still participate
5. Records of cases that are still pending for decision except and attend the same as a member of the Supreme Court?
only for pleadings, orders and resolutions that have been
made available by the court to the public.' A: No. Art. VIII, Sec. 11 of the 1987 Constitution provides a
resolutory condition, stating that members of the Supreme Court
D. Appointments to the Judiciary shall hold office only until they reach the age of seventy years.

1. Qualifications (1987 CONST., Art. VIII, Sec. 7) Q: How may Supreme Court Justices be removed from office?
A: Members of the Supreme Court may be removed from
Q: What are the qualifications needed to be appointed as a
member of the Supreme Court? office, on impeachment for, and conviction of, culpable violation
of the Constitution, treason, bribery, graft and corruption, other

534,4gcaoili Jr. v. Marcos, G.R. No. 232395, 03 July 2018. 535 Republic of the Philippines v. Sereno, G.R. No. 237428, 11 May 2018.
 204 COMPENDIOUS BAR REVIEWER JUDICIAL DEPARTMENT 205
ON POLITICAL LAW

high crimes, or betrayal of public trust.536 In Republic v. Sereno,537 Q: What are the serious charges for which lower court judges
however, a Supreme Court Justice was removed from office and Justices of the CA and the Sandiganbayan may be charged?
through quo warranto proceedings.
A: Serious charges include:
A disbarment case filed against an incumbent Supreme Court
Justice must be dismissed as it amounts to a circumvention of the 1. Bribery, direct or indirect;
constitutional mandate that his removal from office should only 2. Dishonesty and violations of the Anti-Graft and Corrupt
be by way of impeachment.538 Practices Law (R.A. No. 3019);
Q: How can judges of regular and special courts and Justices 3. Gross misconduct constituting violations of the Code of
of the Court of Appeals and the Sandiganbayan be removed Judicial Conduct;
from office?
4. Knowingly rendering an unjust judgment or order as
A: Sec. 11, Rule 140 of the Rules of Court, as amended by determined by a competent court in an appropriate
A.M. No. 01-8-10-SC, provides that if the judge or Justice is proceeding;
guilty of a serious charge as defined in the Rule, the sanction of
dismissal from service may be imposed. 5. Conviction of a crime involving moral turpitude;

Proceedings for the discipline of judges of regular and special 6. Willful failure to pay a just debt;
courts and Justices of the Court of Appeals and the Sandiganbayan
7. Borrowing money or property from lawyers and litigants
may be instituted motu proprio by the Supreme Court or upon a
in a case pending before the court;
verified complaint, supported by affidavits of person who have
personal knowledge of the facts alleged therein or by documents 8. Immorality;
which may substantiate said allegations, or upon an anonymous
complaint, supported by public records of indubitable integrity. 9. Gross ignorance of the law or procedure;
The complaint shall be in writing and shall state clearly and 10. Partisan political activities; and
concisely the acts and omissions constituting violations of
standards of conduct prescribed for judges by law, the Rules of 11. Alcoholism and/or vicious habits.54°
Court, or the Code of Judicial Conduct.'
2. Judicial and Bar Council (1987 CONST., Art. VIII, Secs.
8 and 9)

Q: Who are the members of the Judicial and Bar Council (JBC)?
A: Article VIII, Section 8 of the 1987 Constitution provides that
536 CONST., Art. XI, Sec. 2. the following shall comprise the Judicial and Bar Council:
537 G.R. No. 237428, 11 May 2018.
Re: Petition for Disbarment Filed by Atty. Elly V. Pamatong against Supreme
538
Court Associate Justice Marvic M. V. F. Leonen, A.M. No. 12-11-14-SC (Notice),
15 January 2013.
"9 A.M. No. 01-8-10-SC. '40 Sec. 8, Rule 140, Rules of Court.
 206 COMPENDIOUS BAR REVIEWER JUDICIAL DEPARTMENT 207
ON POLITICAL LAW

1. Chief Justice as the ex-officio chairman, required of a person to be eligible for appointment as a Member
2. Secretary of Justice - ex-officio member, of the Court. It cannot be waived nor bargained away by the JBC.542

3. Representative of Congress - ex-officio member, f. Supreme Court of the Philippines

4. Representative of the Integrated Bar, Q: What are the powers granted to the Supreme Court?

5. Professor of law, A: Under Art. VIII, Secs. 5 and 6 of the 1987 Constitution, the
Supreme Court shall exercise the following powers:
6. Retired Member of the Supreme Court, and
1. Exercise jurisdiction over cases affecting ambassadors,
7. Representative of the Public Sector. other public ministers and consuls, and over petitions for
certiorari, prohibition, mandamus, quo warranto, and
Q: As a long-standing practice, the JBC has been clustering habeas corpus;
the names of nominees for every vacancy in the Sandiganbayan.
Pursuant to this, the JBC prepared six (6) separate lists 2. Review, revise, reverse, modify, or affirm, on appeal or
containing different names for the six (6) vacancies in the certiorari, as the law or the Rules of Court may provide,
Sandiganbayan. However, President Corina wanted to final judgments and orders of the lower courts in:
choose two (2) appointees from one list. Can the JBC
a. All cases in which the constitutionality or validity
prohibit the President from cross-reaching into the lists it
of any treaty, international or executive agreement,
submitted?
law, presidential decree, proclamation, order,
A: No. The Court ruled that the practice of clustering of nominees instruction, ordinance, or regulation is in question;
for simultaneous vacancies impairs the President's power to
b. All cases involving the legality of any tax, impost,
appoint members of the Judiciary. While it is true that the JBC is
assessment, or toll, or any penalty imposed in
an independent body, its independence and discretion are not
relation thereto;
without limits. In fact, clustering can be used as a device to favor
or prejudice a qualified nominee. Hence, the JBC cannot prevent c. All cases in which the jurisdiction of any lower
the President from cross-reaching into the lists since the very act court is in issue;
of clustering itself is unconstitutional.54'
d. All criminal cases in which the penalty imposed is
Q: Can the Judicial and Bar Council waive or bargain away reclusion perpetua or higher;
the qualifications for a Supreme Court Justice?
e. All cases in which only an error or question of law
A: No. The JBC's exercise of discretion is limited by the is involved;
Constitution itself when it prescribed the qualifications absolutely
3. Assign temporarily judges of lower courts to other
stations as public interest may require. Such temporary

54 I Aguinaldo v. Aquino III, G.R. No. 224302, 21 February 2017. '42 Republic v. Sereno, G.R. No. 237428, 11 May 2018.
 208 COMPENDIOUS BAR REVIEWER JUDICIAL DEPARTMENT 209
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assignments shall not exceed six months without the protection and enforcement of constitutional rights, pleading,
consent of the judge concerned; practice, and procedure in all courts, the admission to the
practice of law, the Integrated Bar, and legal assistance to the
4. Order a change of venue or place of trial to avoid a underprivileged.
miscarriage of justice;
5. Promulgate rules concerning the protection and enforcement Q: What are the limitations on the Supreme Court's
procedural rule-making power?
of constitutional rights, pleading, practice, and procedure
in all courts; the admission to the practice of law, the A: Such rules shall provide a simplified and inexpensive
Integrated Bar; and legal assistance to the underprivileged; procedure for the speedy disposition of cases, shall be uniform
6. Appoint all officials and employees of the Judiciary in for all courts of the same grade, and shall not diminish, increase,
accordance with the Civil Service Law; and or modify substantive rights.'

7. Have administrative supervision over all courts and the Q: Is a law fixing the passing rate of the Bar examinations at
personnel thereof. 80%, with no grade lower than 60% in any subject,
constitutional?546
The Supreme Court en bane shall also have the power to
discipline judges of lower courts or order their dismissal by a A: No, it is unconstitutional. The power to promulgate rules
vote of a majority of the Members who actually took part in the concerning the admission to the practice of law was vested by
deliberations on the issues in the case and voted thereon.' the Constitution to the Supreme Court. To pass such law would
infringe on this power and discretion of the Supreme Court
1. Composition (1987 CONST., Art. VIII Sec. 4) which, in turn, will violate the separation of powers."

Q: What is the composition of the Supreme Court? Q: The Legal Education Board, pursuant to its authority to
prescribe minimum standards for admission to law under
A: The Supreme Court shall be composed of a Chief Justice and RA 7662, has issued Memorandum No. 7 establishing the
fourteen Associate Justices. It may sit en bane or at its discretion, in PHILSAT as a precondition for admission to any law school
divisions of three, five, or seven Members. Any vacancy shall be in the country. This caused law professors and aspiring law
filled within ninety (90) days from the occurrence thereof.' students to file a petition before the Supreme Court assailing
the validity of the PHILSAT on the ground that it encroaches
2. Procedural Rule-Making Power (1987 CONST., Art.
upon the rule-making power of the Court concerning
VIII, Sec. 5)
admissions to the practice of law. Rule on the objection.
Q: What is the Supreme Court's procedural rule-making power? A: The Constitution lays down the powers which the Court can
A: Under Sec. 5(5), Art. VIII of the 1987 Constitution, the Supreme exercise. Among these is the power to promulgate rules
Court shall have the power to promulgate rules concerning the

CONST., Art. VIII, Sec. 5(5).

5'13 CONST., Art. VIII, Sec. 11. '46 BAR 2009.
544 CONST,, Art. VIII, Sec. 4 (1). 547 CONST., Art. VIII, Sec. 5(5).
 210 COMPENDIOUS BAR REVIEWER JUDICIAL DEPARTMENT 211
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concerning admission to the practice of law. Accordingly, the 4 Administrative Supervision (1987 C0NST., Art. VIII,
Court's exclusive power of admission to the Bar has been Sec. 6)
interpreted as vesting upon the Court the authority to define the
practice of law, to determine who will be admitted to the practice Q: A legislative inquiry in aid of legislation was conducted to
of law, to hold in contempt any person found to be engaged in investigate the use of Ilocos Norte of its shares from excise
unauthorized practice of law, and to exercise corollary disciplinary taxes. In relation to this, several employees of the Provincial
authority over members of the Bar. However, this power does Government were summoned to appear before the Congress.
not extend the regulation and supervision of legal education, a However, said employees failed to attend the initial hearings.
function that is primarily exercised by the Legislative and Upon the issuance of a show cause order, said employees
implemented by the Executive.'" appeared but were cited in contempt and ordered detained
by the Congress. This prompted the employees to file a
Q: Can the Presidential Electoral Tribunal (PET) dismiss an habeas corpus petition before the Court of Appeals (CA). The
election protest on the ground that the protestant failed to CA heard the petition for habeas corpus to the dismay of the
comply with the strict requirement of specificity and members of the House Committee. The House Committee
established rules on evidence to support the allegations of then issued a show cause order against the Justices of the
election irregularities? CA, asking them to explain why they should not be cited in
contempt. While the habeas corpus petition was still pending,
A: Yes. Article VII, Section 4 of the 1987 Constitution
the employees of the Provincial Government filed an Omnibus
designates the Supreme Court, sitting en banc, as the sole judge
Petition before the Supreme Court (SC), asking that the
of all contests relating to the election, returns, and qualifications
of the President or Vice-President. To effectuate this mandate, pending habeas corpus case before the CA be transferred to
the Constitution granted PET the power to promulgate its rules the SC relying on the latter's administrative supervision over
lower courts as enunciated in the Constitution. Can the SC
for such purpose. It is precisely because of this power that the
assume jurisdiction over the pending habeas corpus petition
PET may dismiss a protest for failure to comply with its rules
before the CA?
concerning election protests.'"
A: No. The Court's administrative supervision over lower
3. Disciplinary Powers (1987 C0NST., Art. VIII, Sec. 11) courts does not give them the power to usurp jurisdiction already
Q: What are the Supreme Court's disciplinary powers? acquired by lower courts. It must be noted that jurisdiction over
habeas corpus petition is shared between the SC and the lower
A: Under Art. VIII, Sec. 11 of the 1987 Constitution, the courts. As the habeas corpus petition was filed by employees
Supreme Court en banc shall have the power to discipline judges with the CA, the latter has acquired jurisdiction over said petition to
of lower courts or order their dismissal by a vote of a majority of the exclusion of all others, including the SC. Moreover, the
the Members who actually took part in the deliberations on the administrative supervision of the SC pertains to its power to
issues in the case and voted thereon. ensure that the operations of the lower courts are managed
effectively, efficiently, and economically, but without interference
with day-to-day activities. The only instance when the SC can
order transfer of cases from one court to another of equal rank is
548 Pimentel v. Legal Education Board, G.R. No. 230642, 10 September 2019.
when to do so would avoid miscarriage of justice. In this case,
549 Marcos v. Robredo, P.E.T. Case No. 005, 16 February 2021.
212 COMPENDIOUS BAR REVIEWER JUDICIAL DEPARTMENT 213
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the employees failed to give any factual or legal basis to support A: The Supreme Court. The Constitution provides that the
their position that there is a need for the SC to wrestle the Supreme Court is given exclusive administrative supervision
jurisdiction from the CA. The mere issuance of a show cause over all courts and judicial personnel. By virtue of this power, it
order by the House Committee against the Justices of the CA did is only the Supreme Court that can oversee the judges' and court
not render the latter impotent.' personnel's compliance with all laws, rules, and regulations. The
Supreme Court may take the proper administrative action against
Q: In disciplining Court officials and personnel, is the Court them if they commit any violation. No other branch of
mandated to follow the Revised Rules on Administrative government may intrude into this power, without running afoul
Cases in the Civil Service? of the doctrine of separation of powers. Thus, the standard
A: No. The Court is not bound by the Revised Rules on Administrative procedure is for the CSC to bring its complaint against a judicial
Cases in the Civil Service. In imposing the penalty, this Court employee before the OCA. The administrative jurisdiction over a
acted in the exercise its constitutional mandate of administrative court employee belongs to the Supreme Court, regardless of
supervision over all courts and its personnel.' whether the offense was committed before or after employment
in the judiciary.'
Q: X committed dishonesty prior to his appointment as a
Court Stenographer I when he caused another person to take 5. Jurisdiction (1987 CONST., Art. VI, Sec. 30; Art. VIII,
the Career Service Professional Examination on his behalf. Sec. 5
Which Court or agency has jurisdiction over the case of X?
Q: Does the Supreme Court En Banc have appellate jurisdiction
A: The Supreme Court. The circumstances showed that X over its divisions?
committed dishonesty prior to his appointment as a Court A: No. The Supreme Court sitting En Banc is not an appellate
Stenographer I, or before he even became an employee of the court vis-à-vis its divisions, and it exercises no appellate jurisdiction
Judiciary. Nonetheless, "administrative jurisdiction over a court over the latter. Each division of the Court is considered not a
employee belongs to the Supreme Court, regardless of whether
body inferior to the Court en banc, and sits veritably as the Court
the offense was committed before or after employment in the
en banc itself."'
judiciary."552
Q: Can the Congress pass a law which increases the appellate
Q: When she was a public school teacher, Z took the CSC- jurisdiction without its advice and concurrence?
supervised Professional Board Examination for Teachers
(PBET) in place of another person. She was later appointed A: No, the Congress cannot pass a law which will increase the
as Court Interpreter III. Which entity has jurisdiction over appellate jurisdiction of the Supreme Court without its advice
the dishonest act committed by Z? and consent. The Constitutional prohibition was intended to give
this Court a measure of control over cases placed under its
appellate jurisdiction. Otherwise, the indiscriminate enactment of

55° Agcaoili, Jr. v. Marcos, G.R. No. 232395, 03 July 2018.

551 Garlan v. Ken Sigales Jr., A.M. No. P-19-3966, 17 February 2021.
552 Re: Alleged Dishonesty and Grave Misconduct committed by Nestor D. Bulaong, .5 53 Ampong v. Civil Service Commission, G.R. No. 167916, 26 August 2008.
A.M. No. P-21-015, 27 April 2021. ' 54 Apo Fruits v. Court of Appeals, G.R. No. 164195, 30 April 2008.
214 COMPENDIOUS BAR REVIEWER
ON POLITICAL LAW

legislation enlarging its appellate jurisdiction would unnecessarily

burden the Court.'" V. Constitutional Commissions
(1987 Const., Art. IX)
Q: Does the fact that the Court has taken cognizance of cases
under the law that increased its appellate jurisdiction even dr Q: What are the three Constitutional Commissions?
without its advice and concurrence equate to its acceptance
of the same? A: The Constitutional Commissions, which shall be independent,
are the Civil Service Commission (CSC), the Commission on
A: No. The jurisdiction of a court is not a question of Elections (COMELEC), and the Commission on Audit (COA).558
acquiescence as a matter of fact but an issue of conferment as a
matter of law."' Q: Name some of the safeguards under the 1987 Constitution
to ensure the independence of the three Constitutional
Q: Can a Petition for Writ of Habeas Corpus involving Commissions.
questions of fact be filed directly before the Supreme Court?
A: The Constitutional Commissions are covered by the following
A: No. While the SC has concurrent jurisdiction, along with the safeguards to ensure their independence:
CA and the trial courts, to issue a writ of habeas corpus, mere
concurrency of jurisdiction does not afford parties absolute 1. They enjoy fiscal autonomy."'
freedom to choose the court with which the petition shall be
2. They can appoint their own officials and employees.'
filed. The hierarchy of courts must still be observed and direct
recourse to the Court is only proper only to seek resolution of 3. They can promulgate their own rules on pleadings and
questions of law."' practice. However, such rules shall not diminish, increase,
or modify substantive rights.'
4. The salary of the Chairman and the Commissioners cannot
be decreased during their tenure.'"
5. The Chairmen and its members cannot be removed
except by impeachment.'"

558 CONST., Art. IX-A, Sec. 1.

559 CONST., Art. IX-A, Sec. 5.
56° CONST., Art. 1X-A, Sec. 4.
561
CONST., Art. IX-A, Sec. 6.
562
CONST., Art. IX-A, Sec. 3.
563
555 CONST., Art. VI, Sec. 30; Fabian v. Desierto, G.R. No. 129742, 16 September 1998. CONST., Art. XI, Sec. 2.
556 Fabian v. Desierto, G.R. No. 129742, 16 September 1998.
857 In Re: In the Matter of Issuance of a Writ of Habeas Corpus to Inmates Raymundo

Reyes et.al, G.R. No. 251954, 10 June 2020. 215

1*
216 COMPENDIOUS BAR REVIEWER CONSTITUTIONAL COMMISSIONS 217
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6. The Chairmen and its members may not be appointed in Elections, and the Commission on Audit, are considered as
a temporary or acting capacity.' independent bodies with appurtenant right to fiscal autonomy.567

7. The Chairmen and its members may not be reappointed.565 Q: Can the Congress pass a law to abolish the Civil Service
FIE Commission (CSC)?
8. Certain inhibitions and disqualifications imposed upon
the Chairmen and members to strengthen their integrity A: No, the Congress cannot abolish the CSC. The Civil Service
under Article IX-A, Section 2 of the 1987 Constitution:566 Commission, Commission on Elections, and Commission on Audit
a. Holding any other office or employment during their are constitutionally created bodies and may not be abolished by
any statute.558
tenure;
b. Engaging in the practice of any profession; Q: Can the Department of Budget and Management withhold
the release of the funds of the Civil Service Commission on the
c. Engaging in the active management or control of any basis that it failed to submit reports as required by the agency?
business which in any way may be affected by the
functions of his office; and A: No. The "No report, no release" policy may not be validly
enforced against agencies which were granted fiscal autonomy.
d. Being financially interested, directly or indirectly, in To rule otherwise will violate Article IX-A, Section 5 of the
any contract with, or in any franchise or privilege 1987 Constitution which provides that: "The Commission shall
granted by the Government, any of its subdivisions, enjoy fiscal autonomy. Their approved appropriations shall be
agencies or instrumentalities, including government- automatically and regularly released." Automatic means something
owned or — controlled corporations or their subsidiaries. mechanical, spontaneous, and perfunctory. As such the Commission
is not required to perform any act to receive the "just share"
Q: The Congress reduced the budget of the Commission of accruing to it from the national coffers.569
Human Rights for the year 2018 to only P1,000.00. X, a
staunch advocate for human rights filed a case before the Q: Can the Congress reduce the budget for the Civil Service
court to question such move on the basis that the 1987 Commission lower than that of the previous year?
Constitution has provided safeguards, one of which is fiscal
autonomy, to ensure independence of commissions. Is X A: Yes. Unlike the provision on Judiciary which expressly
correct in his assertion? prohibits the reduction of budget compared to the previous year,
such prohibition does not exist for the Constitutional Commissions.
A: No, X is not correct. As expressly provided under Article IX-A The plain implication of the omission of the provision proscribing
of the 1987 Constitution, only the Constitutional Commissions, such reduction of appropriations below that for the previous year
i.e., the Civil Service Commission, the Commission on is that Congress is not prohibited from reducing the appropriations

567 Commission on Human Rights Employees Association v. Commission on Human

Rights, G.R. No. 155336, 25 November 2004.
' 64 CONST., Arts. IX-B, IX-C, and IX-D, Sec. 1(2). 568 Lagman v. Executive Secretary, G.R. No. 197422, 03 November 2020.
565 CONST., Arts. 1X-B, IX-C, and IX-D, Sec. 1(2). 669 Civil Service Commission v. Department of Budget and Management, G.R. No.
566 Funa v. The Chairman, Civil Service Commissions, G.R. No. 191672, 25 November 2014. 158791, 22 July 2005.
 218 COMPENDIOUS BAR REVIEWER CONSTITUTIONAL COMMISSIONS 219
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of Constitutional Commissions below the amount appropriated Q: What is the jurisdiction of the CSC?
for them for the previous year.'
A: The CSC shall hear and decide administrative cases instituted
Q: What is the limit of the power of the Constitutional by or brought before it, directly or on appeal, including contested
Commissions to promulgate their own rules concerning appointments and review decisions and actions of its offices and
pleadings and practice before it? of the agencies attached to it.S73
A: Such rules must not diminish, increase, or modify substantive Q: The CSC Regional Office No. 6 charged X with dishonesty
rights.571 for allegedly allowing another person to impersonate him
and take the Police Office I Examination on his behalf on the
A. Powers, Functions, and Jurisdiction (1987 CONST., Art. basis that the picture and signature of X in the application
IX-A, Sec.8; Art. IX-B, Sec. 3; Art. IX-C, Secs. 2-5, 9 and form and the seat plan were not identical to those found in
11; Art. IX-D, Secs. 2-4) X's Personal Data Sheet (PDS). X denied the charge and filed
a Motion to Dismiss, assailing the authority of the CSC to
Civil Service Commission (CSC) conduct and administer entrance examination or promotional
Q: What are the powers and functions of the CSC? examination to the members of the Philippine National Police
pursuant to a ruling in a previous case. The CSC countered
A: The CSC, as the central personnel agency of the Government, shall: that the decision of the Court has prospective application,
hence it still has jurisdiction over the subject incident. The
1. Establish a career service and adopt measures to promote question in this case is whether the CSC has jurisdiction to
morale, efficiency, integrity, responsiveness, progressiveness, conduct investigations and render administrative decisions
and courtesy in the civil service; based on alleged anomalies in police entrance and promotional
2. Strengthen the merit and rewards system; examinations when it no longer had any authority after the
creation of the NPC?
3. Integrate all human resources development programs for
all levels and ranks; A: Yes. Article IX-B, Section 2(1) of the 1987 Constitution
provides that the civil service embraces all branches, subdivisions,
4. Institutionalize a management climate conducive to instrumentalities, and agencies of the Government, including
public accountability; and GOCCs with original charters. In relation to this, the CSC has
been given the authority and jurisdiction by RA 6975 to investigate
5. Submit to the President and the Congress an annual anomalies and irregularities in the civil service examinations as
report on its personnel programs.572 well as to impose the necessary sanctions, including those that
involved entrance examination for police officers. However, this
power was removed when RA 6975 was amended by RA 8551
on March 6, 1998, which effectively transferred the authority to
conduct examinations for police officers from CSC to NPC.
57° Id.
571 CONST., Art. IX-A, Sec. 6.
572 CONST., Art. IX-B, Sec. 3. 573 Revised Rules on Administrative Cases in the Civil Service, Rule 2, Sec. 5.
 220 COMPENDIOUS BAR REVIEWER CONSTITUTIONAL COMMISSIONS 221
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However, the lack of authority by the CSC to conduct the police Commission on Elections (COMELEC)
officer examinations cannot shield X's wrongdoing because X
was not in good faith. Petitioner cannot challenge the CSC's Q: What are the powers and functions of the COMELEC?
authority to conduct said examination and at the same time rely
on its effects only when the same redound to his benefit — he A: The COMELEC shall exercise the following powers and functions:
previously relied on the CSC's authority to conduct the examinations 1. Enforce and administer all laws and regulations relative
and confer police officer eligibility for allegedly passing the to the conduct of an election, plebiscite, initiative,
said exam.'" referendum, and recall;

Q: Mocha filed her certificate of candidacy for the 2022 2. Exercise exclusive original jurisdiction over all contests
elections as Senator. However, she lost by a big margin. Two relating to the elections, returns, and qualifications of all
months later, President Vannie wants to appoint Mocha as elective regional, provincial, and city officials;
the Secretary for the Department of Foreign Affairs. Is this
3. Exercise appellate jurisdiction over all contests involving
allowed under the Constitution?
elective municipal officials decided by trial courts of
A: No. Article IX-B Section 6 of the 1987 Constitution prohibits general jurisdiction, or involving elective barangay officials
the appointment of any candidate who has lost in any election in decided by trial courts of limited jurisdiction;
the Government or any GOCC or any of its subsidiaries.
4. Decide, except those involving the right to vote, all questions
Q: Maneja, a secondary school teacher at Macabalan National affecting elections, including determination of the number
High School in Cagayan De Oro City, was found guilty by and location of polling places, appointment of election
the CSC Regional Office (CSCRO) No. X of dishonesty and officials and inspectors, and registration of voters;
imposed the penalty of dismissal. Maneja's motion for 5. Deputize, with the concurrence of the President, law
reconsideration was denied, prompting her to file an appeal enforcement agencies and instrumentalities of the
with the CSC Proper. Pending the appeal, the CSCRO No. Government, including the Armed Forces of the Philippines,
X's decision was implemented thereby dismissing Maneja for the exclusive purpose of ensuring free, orderly,
from service. Was the implementation correct? honest, peaceful, and credible elections;
A: No. Dismissal from the service imposed by the CSCRO cannot 6. Register, after sufficient publication, political parties,
be executed pending appeal with the CSC Proper. Premature organizations, or coalitions which, in addition to other
execution of the decision ordering the employee's dismissal from requirements, must present their platform or program of
the service entitles the employee to the payment of backwages government; and accredit citizens' arms of the Commission
even though the employee is not fully exonerated on appeal.' on Elections;
7. 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
574 San Felix v. Civil Service Commission, G.R. No. 198404, 14 October 2019, violations of election laws;
Hernando, J.
57' Republic v. Maneja, G.R. No. 209052, 23 June 2021 (M. Lopez, .1.).
 222 COMPENDIOUS BAR REVIEWER CONSTITUTIONAL COMMISSIONS 223
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8. Recommend to the Congress effective measures to Q: Can the COMELEC deputize other agencies and
minimize election spending, including limitation of instrumentalities of the government without the concurrence
places where propaganda materials shall be posted, and of the President?
to prevent and penalize all forms of election frauds,
offenses, malpractices, and nuisance candidacies; A: No. Article IX-C, Section 2(4) of the 1987 Constitution
states that the COMELEC has the power to deputize government
9. Recommend to the President the removal of any officer agencies and instrumentalities, including the Armed Forces,
or employee it has deputized, or the imposition of any provided it is with the concurrence of the President and in order
other disciplinary action, for violation or disregard of, or to ensure free, orderly, honest, peaceful, and credible elections.
disobedience to its directive, order, or decision;
Q: Can the COMELEC be compelled by the Court to review
10. Submit to the President and the Congress a comprehensive
the voter verifiable paper audit trail, to employ another
report on the conduct of each election, plebiscite, method of digitally signing the election results, and to remove
initiative, referendum, or recall;576 and the supposed prohibition on capturing devices while inside
11. Recommend to the President the grant of pardon, the polling place?
amnesty, parole, or suspension of sentence for violation A: No. The COMELEC is empowered by the Constitution to
of election laws, rules, and regulations.57 "[ejnforce and administer all laws and regulations relative to the
conduct of an election." In relation to this, mandamus will not lie
Q: What is the jurisdiction of the COMELEC?
to control the judgment of COMELEC which is considered an
A: The COMELEC shall exercise exclusive original jurisdiction independent constitutional body over matters which the law
over all contests relating to the elections, returns, and qualifications gives it the authority to decide except if there is a showing of
of all elective regional, provincial, and city officials, and appellate grave abuse of discretion.'
jurisdiction over all contests involving elective municipal officials
decided by trial courts of general jurisdiction, or involving Q: For the 09 May 2016 elections, the COMELEC reminded
elective barangay officials decided by trial courts of limited the candidates and political parties to submit their Statement
jurisdiction. Decisions, final orders, or rulings of the Commission of Contributions and Expenditures (SOCEs) not later than
on election contests involving elective municipal and barangay 08 June 2016. The deadline is "final and non-extendible" and
offices shall be final, executory, and not appealable.578 any submission filed beyond such date will not be accepted.
This is pursuant to Section 14 of Republic Act No. 7166,
which provides that the SOCEs must be filed within 30 days
• after the day of the elections. However, the COMELEC En
Banc, through Resolution No. 10147, extended the filing of
SOCEs until 30 June 2016. Is COMELEC guilty of grave
abuse of discretion in issuing Resolution No. 10147?

576 CONST., Art. IX-C, Sec. 2.

577 CONST., Art. IX-C, Sec. 5.
578 CONST., Art. IX-C, Sec. 2(2).
579 DIES Watch v. COMELEC, G.R. No. 246332, 09 December 2020.
224 COMPENDIOUS BAR REVIEWER CONSTITUTIONAL COMMISSIONS 225
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A: Yes. The COMELEC cannot validly extend the deadline fro including temporary or special pre-audit, as are necessary
submission of the SOCEs and exempt the candidates and and appropriate to correct the deficiencies;
political parties from administrative liabilities. The language of
Section 14 of R.A. No. 7166 is unambiguous and not susceptible 3. Have the exclusive authority, subject to the limitations in
to interpretation. The COMELEC's blanket extension of the Article IX of the Constitution, to define the scope of its
period to file SOCEs likewise amounts to usurpation of legislative audit and examination, and establish the techniques and
power. The COMELEC's task is to administer and not to methods required therefor;
interpret the election laws. At most, the COMELEC can only 5. Promulgate accounting and auditing rules, including those
provide details to implement the statute but not to supplant the for the prevention and disallowance of irregular, unnecessary,
expressed provisions of the law.58° excessive, extravagant, or unconscionable expenditures,
Commission on Audit (COA) or uses of government funds and properties;'81 and

Q: What are the powers and functions of the COA? 6. Decide administrative cases involving expenditure of
public funds.'
A: The COA shall have the following powers and functions:
Q: What is the extent of the COA's powers?
1. Examine, audit, and settle all accounts pertaining to the
revenue and receipts of, and expenditures or uses of funds A: No less than the Constitution vested the COA, as the guardian
and property, owned or held in trust by, or pertaining to of public funds, with enough latitude to determine, prevent, and
the Government, or any of its subdivisions, agencies, or disallow irregular, unnecessary, excessive, extravagant or
instrumentalities, including government-owned or controlled unconscionable expenditures of government funds. In the exercise
corporations with original charters, and on a post-audit of its constitutional duty, the COA is accorded plenary discretion,
basis: (a) constitutional bodies, commissions and offices that and the Court generally sustains its decisions in recognition of its
have been granted fiscal autonomy under this Constitution; expertise in the laws it is entrusted to enforce.'
(b) autonomous state colleges and universities; (c) other
Q: Does COA have jurisdiction over GOCCs?
government-owned or controlled corporations and their
subsidiaries; and (d) such non-governmental entities A: Yes. The Constitution vests in the COA audit jurisdiction over
receiving subsidy or equity, directly or indirectly, from "government-owned and controlled corporations with original
or through the Government, which are required by law charters," as well as "government-owned or controlled corporations"
or the granting institution to submit to such audit as a without original charters. GOCCs with original charters are subject
condition of subsidy or equity; to COA pre-audit, while GOCCs without original charters are
subject to COA post-audit. GOCCs without original charters
2. Where the internal control system of the audited agencies is
refer to corporations created under the Corporation Code but are
inadequate, the Commission may adopt such measures,
owned or controlled by the government. The nature or purpose

581 CONST., Art. 1X-D, Sec. 2.

' 8° Partido Demokratiko Pilipino-Lakas ng Bayan (PDP-LABAN) v. Peralta et al., 582 Taisei Shimizu Joint Venture v. Commission on Audit, G.R. No. 238671, 02 June 2020.
G.R. No. 225152, 05 October 2021 (M. Lopez, J.). 583 Paguio, et. al. v. C0,4, et. al., G.R. No. 223547, 27 April 2021 (M. Lopez, J.).
 226 COMPENDIOUS BAR REVIEWER CONSTITUTIONAL COMMISSIONS 227
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of the corporation is not material in determining COA's audit they contravened the directive imposed in Administrative Order
jurisdiction. Neither is the manner of creation of a corporation, No. 103, which suspended the grant of new and additional
whether under a general or special law.' benefits to government employees unless with the approval of
COA. The Board Members are without power to ignore the clear
Q: Does COA have jurisdiction over LGUs? directive from the Chief Executive and to do so would impair the
A: Yes. LGUs, though granted local fiscal autonomy, are still President's constitutionally vested power of control and supervision
within the audit jurisdiction of the COA.." over all the executive departments, bureaus, and offices, which
includes GOCCs, such as the LWUA and local water districts.'
Q: Board members of X Water District received several
benefits pursuant to the board resolutions that they have Q: Is the Manila Economic and Cultural Office (MECO) a
issued. However, this was disallowed by COA on the ground GOCC which ought to be audited by the COA?
that it lacked legal basis as it was granted without the A: No. MECO is not a GOCC or a government instrumentality.
required approval from the Local Water Utilities Administration It is a sui generis private entity. To deem an entity as a GOCC,
(LWUA). The Board Members who were made liable to the following attributes must be present: (1) its organization as
settle the disallowed transactions reiterated that they have stock or non-stock corporation; (2) public character of its
the authority to disburse the cash allowances pursuant to a function; (3) government ownership over the same. In this case,
LWUA Resolution. In a subsequent decision by the COA, it MECO is not owned or controlled by the government. The mere
denied the appeal and noted that the LWUA resolution was performance of functions with a public aspect is not sufficient to
overturned by a subsequent resolution which suspended the considered MECO as a GOCC.587
disbursement of the cash benefits until an appropriate
clearance or approval was given by the COA. The Board Q: Are the accounts of the MECO subject to the audit
Members filed another Petition for Review, but this was jurisdiction of the COA?
denied for being out of time. The issue is whether the COA
committed grave abuse of discretion for dismissing the A: Yes, but only with respect to the verification fees and
Petition for Review for being filed out of time? consular fees that it collects as an exercise of its consular
function which was entrusted by the government."
A: No. No less than the Constitution vested the COA as the
guardian of public funds, with enough discretion to determine, Q: PAGCOR is a GOCC created under Presidential Decree
prevent or disallow any irregular, extravagant or excessive (P.D. 1869). X who was then the Vice President of PAGCOR
government funds. issued a memorandum to the General Managers and Branch
Managers of PAGCOR's casino branches in which he
In the case at bar, the Board Members failed to offer any detailed the guidelines for Baler's movie ticket allocations.
reasonable explanation as to their failure to submit their Petition This plan by X was then approved by the Board of Directors
for Review on time. Worse, by issuing the assailed board of PAGCOR which consequently issued a check payable to A
resolutions granting the Board Members additional cash benefits,

586 Paguio v. Commission on Audit, G.R. No. 223547, 27 April 2021.

584 Feliciano v. COA, G.R. No. 147402, 14 January 2004. 587 Funa v. MECO, G.R. No. 193462, 04 February 2014.
585 Veloso, et. al. v. COA, G.R. No. 193677, 06 September 2011. ' 88 Id.
 228 COMPENDIOUS BAR REVIEWER CONSTITUTIONAL COMMISSIONS 229
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Foundation. The COA then conducted a post-audit examination final award in which it granted 5 out of the 8 claims of the
and subsequently issued a notice of disallowance due to alleged ABC Corp. DOTr resisted payment prompting ABC Corp to
anomalies in the transactions. PAGCOR then assailed the file a case for enforcement before the COA. However, COA
jurisdiction of COA over them. Did COA commit grave ignored the decision of the CIAC and rendered a new
abuse of discretion when it issued the notice of disallowance? decision on the basis that it has primary jurisdiction over
money claims against government agencies. Does the COA
A: Yes. COA's audit jurisdiction over PAGCOR is neither absolute
have exclusive jurisdiction over money claims due from or
nor all-encompassing as the latter is a sui generis GOCC.
owing to the government?
The Constitution provides that the COA has the power, authority,
A: No. COA's primary jurisdiction over money claims involving
and duty to examine, audit and settle all accounts pertaining to
the government is not a bar for another body, tribunal, or court to
the revenue and uses of funds and property owned, or held in
take cognizance of cases involving the same subject matter. In
trust, by the Government including those of the GOCCs. As a
the present case, ABC Corp. as well as DOTr voluntarily
rule, the findings of fact by the COA are accorded with great
invoked the jurisdiction of CIAC, which effectively conferred
respect unless there is a grave abuse of discretion in the exercise
the latter with jurisdiction to hear and decide the given case.
of such.
Moreover, the Construction Industry Arbitration Law or Executive
In this case, PAGCOR is considered a sui generis GOCC. It Order No. 1008 grants CIAC exclusive jurisdiction over the
exercises dual governmental and proprietary functions. On one case. Being a specific law, this must prevail over the general
hand, it exercises a sovereign function by regulating casinos and jurisdiction of COA over money claims due from or owing
clubs, while on the other, it generates income for the government the government.'"
by operating said gambling establishments. Consistent with this
dual function, the PAGCOR Charter provides that the COA's Q: May the COA, in the exercise of its audit power, disturb
audit jurisdiction shall be limited only to PAGCOR's funds final and executory decisions of courts, tribunals, or other
without affecting the rest of its corporate revenue or funds. More adjudicative bodies?
importantly, the COA is without power to strike down as void or A: No. The Supreme Court has been consistent in ruling that
declare as ultra vires the acts of Board of Directors of PAGCOR COA does not have the absolute discretion to disregard final and
or any other GOCC.589 executory judgments rendered by courts and other adjudicative
Q: Petitioner ABC Corp won the contract award for the bodies which were rendered in valid exercise of their jurisdiction.
To rule otherwise would disturb the quality of immutability that
construction of a new airport. However, despite the
completion of the project and the delivery of the airport to is inherent in decisions that have already attained finality.
the Department of Transportation (DOTr), some of the bills Moreover, COA has no appellate review power over the
remained unpaid. This prompted ABC Corp to file a Request decisions of any other court or tribunal. COA's jurisdiction over
for Arbitration and Complaint before the Construction final money judgment is only limited to the execution stage to
Industry Arbitration Commission (CIAC). CIAC rendered a ensure that the enforcement of the final money judgments is in

589 Figueroa v. Commission on Audit, G.R. No. 213212, 213497, 213655, 27 April 2021. 59° Taisei Shimizu Joint Venture v. Commission on Audit, G.R. No 238671, 2 June 2020.
 230 COMPENDIOUS BAR REVIEWER CONSTITUTIONAL COMMISSIONS 231
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accord with auditing laws. As such, the COA is without power to or a local government or a distinct unit therein. A GOCC cannot
disturb much less alter the final decision rendered by the CIAC.591 validly invoke its autonomy to enter into a compromise
agreement that is in violation of the above provision.593
Q: Is COA constitutionally mandated to conduct a pre-audit?
Q: Can COA still disallow the grant of allowances to Philhealth's
A: No. Article IX-D of the 1987 Constitution does not require
personnel considering that the latter was granted with the
COA to conduct a pre-audit of all government transactions and
power to fix salaries and allowances under its charter? If yes,
for all government agencies. The only clear reference to a pre-
will Philhealth be required to refund said amounts?
audit requirement is found in Section 2(1), which provides that a
post-audit is mandated for certain government or private entities A: Yes. Notwithstanding any exemption granted under their
with state subsidy or equity and only when the internal control charters, the power of GOCCs to fix salaries and allowances
system of an audited entity is inadequate. In such a situation, the must still conform to compensation and position classification
COA may adopt measures, including a temporary or special pre- standards laid down by applicable law. Philhealth's fiscal
audit, to correct the deficiencies. Hence, the conduct of a pre- autonomy does not automatically preclude the COA's power to
audit is not a mandatory duty that this Court may compel the disallow the grant of allowances in cases of irregular, excessive,
COA to perform.' unnecessary, or unconscionable expenditures of government
funds. However, since Philhealth acted in good faith, i.e.,
Q: Can COA recommend the denial of a compromise agreement obtained prior board approval and favorable opinion from the
entered into by the GOCC in relation to the latter's liabilities? Office of Government Corporate Counsel prior to the release of
A: Yes. Section 20(1), Chapter IV, Subtitle B, Title I, Book V benefits, it need not refund the said amounts.'
of the Administrative Code of 1987 or Executive Order No. 292
Q: The Ombudsman issued a statement calling to stop the
provides that when the interest of the Government so requires,
COA from publishing its Annual Audit Reports (AARs) on
the Commission may compromise or release in whole or in part, government offices and agencies to the public because the
any settled claim or liability to any government agency not
AAR findings are not yet final and can still be appealed. Is
exceeding P10,000.00 arising out of any matter or case before it the Ombudsman's position correct?
or within its jurisdiction, and with the written approval of the
President, it may likewise compromise or release any similar A: No, because the publication of the COA audit reports is
claim or liability not exceeding P100,000.00. Should the claim or mandated by the Constitution. Section 4, Art. IX-D of the 1987
liability exceed P100,000.00, the application for relief therefrom Constitution provides that the COA shall submit to the President
shall be submitted, through the Commission and the President, and the Congress, within the time fixed by law, an annual report
with their recommendations, to the Congress. An "agency" of the covering the financial condition and operation of the Government,
Government refers to any of the various units of the Government, its subdivisions, agencies, and instrumentalities, including GOCCs,
including a department, bureau, office, instrumentality, or government- and non-governmental entities subject to its audit, and recommend
owned or controlled corporation (with or without original charters),

593 Binga Hydroelectric Plant, Inc. v. Commission on Audit, G.R. No. 218721, 10
July 2018.
591 Id.; V.C. Ponce Co., Inc. v. Commission on Audit, G.R No. 213821, 26 January 2021. 594Philippine Health Insurance Corporation Regional Office — CARAGA v. Commission
592 Dela Liana v. Chairperson, Commission on Audit, G.R. No. 180989, 07 February 2012. on Audit, G.R. No. 230218, 14 August 2018.
 232 COMPENDIOUS BAR REVIEWER CONSTITUTIONAL• COMMISSIONS 233
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measures necessary to improve their effectiveness and efficiency. It CIF Law, the Supreme Court ruled that the DBM Letters were
shall submit such other reports as may be required by law. erroneous and cannot be relied upon. The DBM Letters were
Moreover, such publication is in line with the right of the people merely advisory opinions, which do not have the force and effect
to information on matters of public concern.595 of a valid rule or law considering that they went beyond the
scope of the statutory authority that they were supposed to
Q: Is the Maharlika Investment Fund subject to COA audit?
implement by arbitrarily prescribing a different date to replace
A: Yes. Section 36 of R.A. No. 11954 or the "Maharlika that which the legislature fixed. The DBM Letters cannot
Investment Fund Act of 2023" provides that the books and legitimize the grant of benefits beyond what was authorized by
accounts of the Maharlika Investment Corporation shall be the law. Hence, the COA did not commit grave abuse of
subject to the examination and audit of the COA pursuant to Art. discretion in disallowing the benefits.
IX of the 1987 Constitution.
Q: Should the approving or certifying officers be held liable
Q: Subic Water District (SWD), a GOCC, released additional to refund COA-disallowed benefits?
benefits for its officers, employees, and Board of Directors
but these disbursements were disallowed for being granted to A: It depends. As discussed in Madera v. COA,597 the solidary
persons employed after 30 June 1989, in violation of DBM civil liability of approving or certifying officers under the
CCC No. 10, s. 1999. The DBM Circular limited the grant of Administrative Code of 1987 are grounded upon the manifest
additional allowances only to employees who are incumbent bad faith, malice, or gross negligence of the public officers in the
and receiving such benefits as of 01 July 1989. COA affirmed performance of their official duties because of the presumption
the disallowance. For its part, SWD insisted that the of good faith and regularity in the performance of official duty in
disbursements were authorized by DBM Secretary Diokno's their favor. The ultimate analysis of good faith or bad faith for
Letters (DBM Letters) authorizing the continuous grant of purposes of liability determination will depend on the unique
allowances or fringe benefits found to be an established facts in every case.
practice of local water districts (LWDs) as of 31 December Q: Can the recipients of COA-disallowed benefits be
1999. On the other hand, the COA maintains that LWDs are absolved to refund the same on the basis of good faith?
GOCCs upon their creation under PD No. 198. Thus, only
those additional compensations given to incumbents as of 01 A: No. Good faith may excuse the officers' liability to refund
July 1989 shall be allowed, in accordance with RA No. 6758 the disallowed amounts, but not that of the recipients. Recipients
or the Salary Standardization Law. Was the disallowance of the may only be absolved from the liability to settle the disallowed
benefits proper? transaction: (1) upon a showing that the questioned benefits or
incentives were genuinely given in consideration of services
A: Yes. In Ancheta v. Commission on Audit,596 considering that rendered; or (2) excused by the Court on the basis of undue prejudice,
the LWDs are GOCCs covered by the Salary Standardization social justice considerations, and other bona fide exceptions

595CONST., Art. III, Sec. 7.

596
G.R. No. 236725, 02 February 2021 (M. Lopez, J.) citing Torcuator v. Commission
on Audit, G.R. No. 210631 (Resolution), 12 March 2019 and Agra v. Commission
on Audit, G.R. No. 167807, 06 December 2011. 597 G.R. No. 244128, 08 September 2020.

LL
234 COMPENDIOUS BAR REVIEWER CONSTITUTIONAL COMMISSIONS 235
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depending on the purpose, nature, and amount of the disallowed has already lapsed. Taken together, the COA committed grave
benefit or incentive relative to the attending circumstances.'" abuse of discretion in reviewing a final and executory judgment
and reopening a settled account beyond the legal period.'"
Q: In 2006, the Board of Directors of DBP granted salary •

increases to its senior officers pursuant to its compensation Q: Due to its "dire need" of technical assistance, the Bureau
plan. On 19 June 2007, the supervising auditor disallowed of Investments (BOI) entered into service agreements with
the amount because the DBP's compensation plan lacks prior Attys. A, B, and C. Upon post-audit, Notices of Disallowance
approval from the Office of the President. The DBP appealed were issued covering the salaries paid to the three lawyers on
the notice of disallowance to the COA, which initially denied the ground that their engagement did not have the conformity
the appeal but later granted it in its decision dated 01 and acquiescence of the OSG and the written concurrence of
February 2012 based on the post facto approval of the the COA, in violation of COA Circular No. 86-255. The BOI
compensation plan by former President Macapagal-Arroyo. appealed to the COA NGC-Cluster 8 Director, arguing that
The DBP did not move for reconsideration or appeal the COA Circular No. 86-255 was not applicable given that the
decision. On 13 April 2015, the COA motu proprio reversed lawyers were hired not as legal counsels but as technical
its decision based on the discovery of new evidence that the assistants. The COA NGC-Cluster 8 Director sustained the
approval was made within the prohibited period before the disallowance, ruling that the COA Circular applied to the
elections. The DBP argues that the COA committed grave hiring of private lawyers for their rendition of any legal
abuse of discretion in reviewing a decision that is already service. The COA also affirmed the disallowance. Rule.
final and executory, while the COA maintains that it has the
A: The disallowance must be upheld. Under COA Circular
power to review settled accounts. Rule.
No. 86-255, as amended by COA Circular No. 95-011, the
A: The DBP is correct. The doctrine of immutability of a final following indispensable conditions must be satisfied before a
judgment holds that a final and executory judgment cannot be government agency or instrumentality hires a private lawyer: (1)
modified or revised, except in certain limited circumstances such the hiring must be justified by an exceptional circumstance; (2)
as the correction of clerical errors, nunc pro tunc entries, void the written conformity and acquiescence of the OSG must be
judgments, and supervening events. Under the COA Rules of secured; and (3) the written concurrence of the COA must also
Procedure, the settlement of an account by the COA becomes be obtained. Recently, COA Circular No. 2021-003 further amended
final and executory after 30 days from notice, unless a motion COA Circular No. 86-255 by exempting national government
for reconsideration or an appeal is filed. In this case, no motion agencies and instrumentalities from the requirement of COA's
for reconsideration or appeal was filed by DBP. prior written concurrence subject to specific conditions, the
existence of which is to be determined by the COA. On the other
It is true that the COA has the authority to review and revise hand, the written conformity and acquiescence of the OSG
settled accounts within three years if there is evidence of fraud, remains to be an indispensable requirement under the new
collusion, error of calculation, or the discovery of new and guidelines for purposes of validating the necessity of procuring
material evidence. In this case, however, the three-year period services of a private lawyer before engaging one.

598 Hagonoy Water District v. Commission on Audit, G.R. No. 247228, 02 March 599Development Bank of the Philippines v. Commission on Audit, G.R. No. 247787,
2021 (M. Lopez, J.). 02 March 2021 (M. Lopez, J.).
236 COMPENDIOUS BAR REVIEWER CONSTITUTIONAL COMMISSIONS 237
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In this case, BOI attempted to justify their failure to comply with disapproved the Compromise Agreement, which is void for
the COA Circular requirements by asserting BOI's "dire need" to allowing Central Bay to assign the reclaimed land. A contract
hire technical assistance from outside the bureau to augment its which violates the Constitution is void, and it will not permit to
deficient staff. This general allegation, however, is a factual be done indirectly which, because of public policy, cannot be
601
matter that could have been verified by the OSG had the BOI done directly.
complied with the requirements under the established rules
before it hired private lawyers. Hence, absent any semblance of Q: Is the income from joint venture agreements between the
grave abuse of discretion and for lack of evidence on record to government and private entities subject to COA audit?
make a judicious factual determination, the disallowance must
be upheld.' A: Yes. The 1987 Constitution has made the COA the guardian
of public funds, vesting it with broad powers over all accounts
Q: The Philippine Reclamation Authority (PRA) entered into pertaining to government revenue and expenditures and the uses
an Amended Joint Venture Agreement (JVA) with Central of public funds and property, including the exclusive authority to
Bay Reclamation and Development Corporation (Central define the scope of its audit and examination, establish the
Bay) to develop the "Freedom Islands" and to reclaim foreshore techniques and methods for such review, and promulgate accounting
and submerged areas of the Manila Bay. The Supreme Court and auditing rules and regulations. The COA is endowed with
nullified the Amended JVA for violating the constitutional enough latitude to determine, prevent and disallow irregular,
prohibition against private corporations from acquiring any unnecessary, excessive, extravagant or unconscionable expenditures
kind of alienable land of the public domain except through a of government funds.602 Since joint venture agreements between
lease. However, the Court allowed Central Bay to recover the government and private entities involve government funds
from PRA the costs incurred in implementing the agreement. and/or properties, the income therefrom must be subjected to
Later, the parties submitted a joint motion for judgment COA audit.
based on a Compromise Agreement where PRA offered to
B. Composition and Qualifications of Members (1987 CONST.,
pay the incurred costs by transferring a portion of reclaimed
Art. IX-B, Sec. 1; Art. IX-C, Sec. 1; Art. IX-D, Sec. 1)
land to Central Bay's qualified assignee. The COA disapproved
the Compromise Agreement and ruled that such stipulation CSC
is a circumvention of the SC's Decision. Is the COA's
decision correct? Q: What is the composition of CSC?
A: Yes. The Court has generally sustained the decisions or A: The CSC shall be composed of a Chairman and two
resolutions of COA owing to its constitutional mandate and Commissioners.' They shall be appointed by the President with
special knowledge on matters within its powers unless it has
clearly acted without or in excess of jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction.
In this case, there is no grave abuse of discretion when the COA
601 Central Bay Reclamation and Development Corp. v. Commission on Audit, G.R.
No. 252940, 5 April 2022 (M. Lopez, J.).
602 Id.
600 Ricalde v. Commission on Audit, G.R. No. 253724 (Resolution), 15 February
2022 (M. Lopez, J.). 603 C0NST., Art. IX-B, Sec. 1(1).
238 COMPENDIOUS BAR REVIEWER CONSTITUTIONAL COMMISSIONS 239
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the consent of the Commission on Appointments for a term of 4. Must not have been a candidate for any elective position
seven years without reappointment.6" in the immediately preceding election.

Q: Does a Civil Service Commissioner need to be a member A majority of the Commission, including the Chairman,
of the Philippine Bar? shall also be members of the Philippine Bar who have been
engaged in the practice of law for at least ten (10) years."'
A: No. Article IX-B, Section 1(1) of the 1987 Constitution only
requires a Civil Service Commissioner to be a: Q: Suppose a COMELEC Chairman resigns from his post.
Can he thereafter be appointed to another constitutional
1. Natural-born citizen of the Philippines;
commission?
2. At least 35 years old at the time of their appointment;
A: Yes. Section 2, Art. IX-A of the 1987 Constitution already
3. With proven capacity for public administration; and provides the prohibited offices and interest of members of
constitutional commissions. Since there is nothing under the
4. Must not have been a candidate for any elective position Constitution that specifically prohibits the appointment of a
in the election immediately preceding his appointment. former Chairman to another constitutional commission following
his resignation, it can be concluded that the appointment is valid.
COMELEC
COA
Q: What is the composition of COMELEC?
A: The COMELEC shall be composed of a Chairman and six Q: What is the composition of COA?
Commissioners.' They shall be appointed by the President with A: The COA shall be composed of a Chairman and two
the consent of the Commission on Appointments for a term of Commissioners.608 They shall be appointed by the President with
seven years without reappointment.' the consent of the Commission on Appointments for a term of
seven years without reappointment."'
Q: What are the qualifications of COMELEC Commissioners
as provided for under the Constitution? Q: What are the qualifications of COA Commissioners as
provided for under the Constitution?
A: A COMELEC Commissioner must be:
A: A COA Commissioner must be a:
1. A natural-born citizen of the Philippines;
1. A natural-born citizen of the Philippines;
2. At least 35 years old at the time of his appointment;
2. At least 35 years old at the time of his appointment;
3. A holder of a college degree; and

604 CONST., Art. IX-B, Sec. 1(2).

607
CONST., Art. IX-C, Sec. 1(1).
605
CONST., Art. IX-C, Sec. 1(1). 608 CONST., Art. IX-D, Sec. 1(1).
606 609
CONST., Art. IX-C, Sec. 1(2). CONST., Art. IX-D, Sec. 1(2).
 240 COMPENDIOUS BAR REVIEWER CONSTITUTIONAL COMMISSIONS 241
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3. May either be a Certified Public Accountant with no less the Government, any of its subdivisions, agencies, or
than ten years of auditing experience, or a member of the instrumentalities, including GOCCs or their subsidiaries.611
Philippine Bar who have been engaged in the practice of
law for at least ten years; and a Review of Final Orders, Resolutions and Decisions

4. Must not have been a candidate for any elective position Q: On 2014, the Sangguniang Panlalawigan of Camarines
in the immediately preceding election.610 Sur enacted Ordinance No. 039 which authorized the then
Governor X to grant additional allowances to public school
Q: Can all the members of COA belong to the same position teachers, barangay workers, barangay officials, barangay
for a certain period of time? tanods and day care workers. However, COA issued a Notice
A: No. Article IX-D, Section 1 of the 1987 Constitution provides of Disallowance (NOD) and held the respondents to be liable
that members of the COA may be Certified Public Accountants for the said amount on the ground that the grant for
with not less than ten (10) years of auditing experience, or additional allowance is expressly prohibited by a local budget
members of the Philippine Bar who have been engaged in the circular and that the legal basis for the additional allowance
practice of law for at least ten (10) years but at no time shall all did not authorize the Sangguniang Panlalawigan to provide
Members of the Commission belong to the same profession. for such allowance. Upon receipt of the NOD, respondent
filed a petition for certiorari under Rule 65 of the Rules of
C. Prohibited Offices and Interests (1987 CONST, Art. IX- Court before the RTC. Does the RTC have jurisdiction over
A, Sec. 2) the certiorari filed by respondent?

Q: What are the prohibitions that apply to Members of the A: No, the RTC does not have jurisdiction to entertain a petition
Constitutional Commissions as provided under the Constitution? for certiorari over a COA Auditor's NOD.

A: During their tenure, the members of the Constitutional Article IX-A, Section 6 of the 1987 Constitution provides that
Commission are not allowed to: the COA has the power to promulgate its own rules concerning
pleadings and practices before any of its offices. Pursuant to the
1. Hold any other office or employment; COA Rules, the remedy of a party issued by a COA Auditor is to
file an appeal to the COA Director having jurisdiction over the
2. Engage in the practice of any profession or in the active agency under audit. After which, the party can file a petition for
management or control of any business which, in any review before the Commission Proper and it is only then when
way, may be affected by the functions of his office; and the jurisdiction of the Supreme Court may be invoked by filing a
3. Be financially interested, directly or indirectly, in any petition for certiorari under Rule 64 in relation to Rule 65 of the
contract with, or in any franchise or privilege granted by Rules of Court, within a period of 30 days from notice of the
judgment or final order or resolution sought to be reviewed. To

610 1 d .
61 1 C0NST., Art. 1X-A, Sec. 2.
 242 COMPENDIOUS BAR REVIEWER CONSTITUTIONAL COMMISSIONS 243
ON POLITICAL LAW

reiterate, only the Supreme Court has certiorari jurisdiction over Board of the BSP. Did the COA commit grave abuse of
a COA decision.612 discretion in recommending to deny the condonation/write-off?

1. Rendered in the Exercise of Quasi-Judicial Functions A: No. The COA is authorized and duty-bound to issue a
(1987 CONST, Art. IX-A, Sec. 7) recommendation on the condonations and release of claims. E.O.
No. 292 and PD No. 1445 give the COA the authority to do so,
Q: Pursuant to its quasi-legislative power, COA issued a prescinding from its role to recommend the compromise or
circular which lifted the system of pre-audit of government release of claims or liabilities exceeding P100,000.00 before the
financial transactions. Acting on the premise that the conduct of Congress. This is consistent with the general jurisdiction of the
a pre-audit is constitutionally mandated, X filed a Petition COA to examine, audit, and settle all debts and claims of any
for Certiorari before the Supreme Court to assail the sort due from or owing to the Government or any of its
circular which lifted the pre-audit system. For its part, COA subdivisions, agencies, and instrumentalities.
argued that the petition must be dismissed since there was no
allegation showing that the COA exercised judicial or quasi- Notably, E.O. 292 categorically divested GOCCs and agencies
j udicial functions when it promulgated the assailed circular. with the "exclusive" power to compromise or release claims or
Did X availed the correct remedy to assail the circular? liabilities, and instead, lodged such power to the COA or the
Congress upon recommendation of the COA and the President in
A: No. Only decisions and orders of the COA in the exercise of proper cases. Hence, the COA correctly ruled that its recommendation
its quasi-judicial capacity are reviewable by the court via a was mandatory, and PDIC cannot motu proprio compromise a
petition for certiorari. Since the assailed circular was claim or liability.614
promulgated under COA's quasi-legislative power, certiorari is
not proper.' Q: What is the proper mode of appeal from decisions of the CSC?

Q: The following matters were elevated to the COA for its A: As provided under Rule 43, Sec. 1 of the Rules of Court, the
r
recommendation: (a) PDIC's condonation of the financial proper mode of appeal from the decision of a quasi-judicial
assistance it granted to W Bank; and (b) PDIC's request to agency, like the CSC, is a petition for review filed with the Court
write-off the account of K Bank since the said account of Appeals.'
appears to be uncollectible. Despite the questioned transactions
2. Rendered in the Exercise of Administrative Functions
having been implemented and subjected to post-audit, the
(1987 CONST, Art. IX-A, Secs. 4 and 6)
COA still proceeded to deny the recommendation of the
condonation or release of the banks' obligations. Hence, PDIC Q: The COMELEC Bids and Awards Committee disqualified
filed a petition for certiorari assailing the COA's decision Smartmatic Joint Venture for failure to submit a valid AOI
and maintaining that it is empowered under its Charter to and for the failure of the demo unit to meet the technical
condone or release any claim or liability regardless of the requirements needed for the conduct of the 2016 National
amount, and that its actions were approved by the Monetary

614 Philippine Deposit Insurance Corp. v. Commission on Audit, G.R. No. 218068,
612 Disuanco v. Villafiterte, G.R. No. 247391, 02 December 2021. 15 March 2022 (M. Lopez, J.).
613 Dela Liana v. Chairperson. Commission on Audit, G.R. No. 180989, 07 February 2012. 61' Mahinay v. Court of Appeals, G.R. No. 152457, 30 April 2008.
244 COMPENDIOUS BAR REVIEWER
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Elections. Smartmatic filed a protest and asked for another

opportunity to demonstrate its units before the COMELEC VI. Bill of Rights
En Banc. After the subsequent demonstration, the COMELEC
En Banc granted Smartmatic's protest and awarded the
(1987 Const., Art. III)
contract to them as the lowest bidders. This caused the
Q: Can the Bill of Rights be invoked against private acts?
petitioners to file a petition for certiorari or prohibition
under Rule 64 of the Rules of Court to assail the decision of A: No. The Bill of Rights governs the relationship between the
the COMELEC En Banc. Petitioners argue that Decision of individual and the State. Its concern is not the relation between
the COMELEC En banc declaring Smartmatic JV as the private individuals. What it does is to declare some forbidden
eligible bidder with the lowest calculated responsive bid is a zones in the private sphere inaccessible to any power holder.61
"judgment" which is a proper subject of a Rule 64 Petition. In the absence of governmental interference, the liberties granted
Did the petitioners avail of the correct remedy? by the Constitution cannot be invoked. The equal protection
erects no shield against private conduct, however discriminatory
A: No. While it is true that Article IX-A, Section 7 of the
or wrongful.'
Constitution provides that the rulings of the constitutional
commissions shall be subject to review only by the Supreme A. Due Process Clause; Procedural and Substantive Requirements
Court on certiorari, this rule is not all-encompassing. Rule 64 (1987 CONST., Art. III, Sec. 1; Art. XIII, Sec. 1)
applies only to judgments or final orders of the COMELEC in
the exercise of its quasi-judicial functions. Rule 64 does not Q: What are the two aspects of due process?
apply to interlocutory orders of the COMELEC in the exercise of
its quasi-judicial functions or to its administrative orders. In such A: Substantive due process refers to the intrinsic validity of a
cases, the proper remedy is to file a Rule 65 Petition for law that interferes with the rights of a person to his property.
Certiorari. As applied herein, the subject matter pertains to the Procedural due process, on the other hand, means compliance
propriety of the polling commission's conduct of the procurement with the procedures or steps, even periods, prescribed by the
process, and its initial finding that Smartmatic JV is eligible to statute, in conformity with the standard of fair play and without
participate therein. Hence, the decision of the COMELEC En arbitrariness on the part of those who are called upon to
Banc is administrative in nature.' administer it.619

b17 People v. Mara, G.R. No. 81561, 18 January 1991.

618 Yrasuegui v. PAL, G.R. No. 168081, 17 October 2008.
619 Alliance for the Family Foundation, Philippines, Inc. v. Garin, G.R. No. 217872,
26 April 2017.

6j6Querubin v. COMELEC, G.R. No. 218787, 08 December 2015. 245

 246 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 247
ON POLITICAL LAW
Mie
Q: What are the requisites of substantive due process? that a prima facie case already existed against Ante and
others. In seeking for the quashal of the formal charges, Ante
A: The requisites of substantive due process are (a) the interests
reasoned that the preliminary inquiry was invalid for violating
of the public generally, as distinguished from those of a
Section 1, Rule III of the Rules Governing Fraternities, which
particular class, require its exercise, and (b) the means adopted
requires that the preliminary inquiry be conducted "by any
must be reasonably necessary for the accomplishment of the
member of the Tribunal." The SDT denied the omnibus
purpose and not unduly oppressive upon individuals.620
motion maintaining that a valid preliminary inquiry was
Q: What are the essential elements of procedural due process? conducted. Was the SDT correct in denying the motion?

A: The essential elements of procedural due process are (a) A: Yes, the SDT correctly denied the motion since there was no
notice and (b) a real opportunity to be heard.62' violation of X's right to due process.
622 the
In the landmark case of Guzman v. National University,
Q: Seven disciplinary actions were filed by School of the
Court laid down the requisites for the satisfaction of due process
Philippines (SP) before the Student Disciplinary Tribunal
in disciplinary cases involving students. It held that, there are
(SDT) against X, et al., over the alleged hazing activities/
withal minimum standards which must be met to satisfy the
initiation rites conducted by the Status Quo Fraternity, that
demands of procedural due process; and these are, that (1) the
led to the death of one of its neophytes, Z. In particular, the
students must be informed in writing of the nature and cause of
formal charges accused them of participating in the alleged
accusation against them; (2) they shall have the right to answer
hazing activities/initiation rites, leaving Z in the hospital, and
the charges against them, with the assistance of counsel, if
failing to give information to the authorities, and to comply
desired; (3) they shall be informed of the evidence against them;
with the directives of SP's Vice Chancellor for Student Affairs
(4) they shall have the right to adduce evidence in their own
to give information on the circumstances surrounding Z's death.
behalf; and (5) the evidence must be duly considered by the
X in his answer emphasized that under Section 1, Rule III of investigating committee or official designated by the school
the SP Revised Rules and Regulations Governing Fraternities, authorities to hear and decide the case.
Sororities, and other Student Organizations (Rules Governing
In the present case, and following Guzman, there was no
Fraternities), a valid preliminary inquiry must first be violation of X's right to due process when formal proceedings
conducted to determine whether a formal charge against any
have only yet to begin. SDT is in fact asking X to participate —
member or officer of a fraternity, sorority, or other student
I the very essence of due process — but the latter so stubbornly
organization is warranted. Thus, X filed an omnibus motion
refuses to do so and instead resorts to procedural devices meant
seeking for: (a) the quashal of the formal charges and
to avoid the proceedings.
declaration of all the proceedings as void due to an invalid
preliminary inquiry; and (b) the inhibition of the members of Q: ELECTRICO is a public utility corporation duly organized
SDT who conducted the invalid preliminary inquiry on the and existing under Philippine laws. Pursuant to RA 9209, the
ground of prejudgment, considering that SDT has concluded statute granting its franchise, ELECTRICO is enfranchised

620 City of Manila v. Laguio, G.R. No, 118127, 12 April 2005.

621 Vio v. PAGCOR, G.R. No. 187854, 12 November 2013. 622 G.R. No. L-68288, 11 July 1986.
 248 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 249
ON POLITICAL LAW

to construct, operate and maintain a distribution system for of the LGU, and whether the same was passed pursuant to the
the conveyance of electricity in the cities and municipalities procedure laid down by law. Meanwhile, the Substantive Test
in the National Capital Region, among others. primarily assesses the reasonableness and fairness of the
ordinance and significantly its compliance with the Constitution
On January 1, 1994, MO 93-35 or the Revenue Code of the
and existing statutes.
Municipality of Muntinlupa took effect. Section 25 thereof
imposed a franchise tax on private persons or corporations MO 93-35, particularly Section 25 thereof, has failed to meet the
operating public utilities within its territorial jurisdiction. requirements of a valid ordinance. Applying the Formal Test, the
Subsequently, RA 7926 was enacted and approved on March passage of the subject ordinance was beyond the corporate powers
1, 1995 which converted the Municipality of Muntinlupa into of the then Municipality of Muntinlupa, hence, ultra vires.
a highly urbanized city, now the City of Muntinlupa. Section
56 of the transitory and final provisions of RA 7926 adopted Based on the Substantive Test, Section 25 of MO 93-35 deviated
all existing municipal ordinances of the Municipality of from the express provision of RA 7160. While ordinances, just
Muntinlupa as of March 1, 1995, and shall all continue to take like other laws and statutes, enjoy the presumption of validity,
effect within the City of Muntinlupa unless its Sangguniang they may be struck down and set aside when their invalidity or
Panlungsod enacts an ordinance providing otherwise. unreasonableness is evident on the face or has been established
in evidence. In this case, Section 25 of MO 93-35 was evidently
On June 28, 1999, the Municipal Treasurer of Muntinlupa passed beyond the powers of a municipality in clear contravention
sent a letter to ELECTRICO demanding payment of the of RA 7160.
franchise tax it owed to Muntinlupa City from 1992 to 1999
pursuant to Section 25 of MO 93-35 and paragraph 7 of the Section 137 of RA 7610 particularly provides that provinces may
Bureau of Local Government Finance Circular No. 20-98. impose a franchise tax on businesses granted with a franchise to
ELECTRICO ignored the demand letters for payment of the operate. Since provinces have been vested with the power to levy
franchise tax for the years 1994 to 2000 on the premise that a franchise tax, it follows that municipalities, pursuant to Section
the City of Muntinlupa, then a municipality, did not have the 142 of RA 7160, could no longer levy it. Therefore, Section 25
power and authority to impose and collect a franchise tax. of MO 93-35 which was enacted when Muntinlupa was still a
municipality and which imposed a franchise tax on public utility
ELECTRICO contends that Section 25 of MO 93-35 is null corporations within its territorial jurisdiction, is ultra vires for
and void for being contrary to law, unjust and confiscatory. being violative of Section 142 of RA 7160.624
Is ELECTRICO correct?
Q: When does a law interfering with private rights meet the
A: Yes. Section 25 of MO 93-35 is null and void for being ultra vires requirements of substantive due process?
Legaspi v. City of Cebu623 explains the two tests in determining A: A law interfering with private rights meets the requirements
the validity of an ordinance, i.e., the Formal Test and the of substantive due process when the interest of the general
Substantive Test. The Formal Test requires the determination of public, as distinguished from those of a particular class, requires
whether the ordinance was enacted within the corporate powers such interference with private rights and the means must be

623 G.R. No. 159110, 10 December 2013. 624 MERALCO v. City of Aluntinlupa, G.R. No. 198529, February 9, 2021.
 250 COMPENDIOUS BAR REVIEWER BILL OF•RIGHTS 251
ON POLITICAL LAW

reasonably necessary for the accomplishment of the purpose and protestation of lack or non-observance of due process well-
not unduly oppressive of private rights. It must also be evident grounded? Explain your answers.626
that no other alternative for the accomplishment of the purpose
less intrusive of private rights can work. More importantly, a A: No, the Police Commission is not bound by the findings of
reasonable relation must exist between the purposes of the the City Fiscal. Further, it is not prohibited from making its own
measure and the means employed for its accomplishment, for findings on the basis of its own evaluation of the records.
even under the guise of protecting the public interest, personal Likewise, the protestation of lack of due process is not well-
rights and those pertaining to private property will not be grounded, since the hearings before the Municipal Board and the
permitted to be arbitrarily invaded.625 City Fiscal offered Gatdula the chance to be heard. There is no
denial of due process if the decision was rendered on the basis of
Q: On April 6, 1963, Police Officer Mario Gatdula was evidence contained in the records and disclosed to the parties
charged by the Mayor with Grave Misconduct and Violation affected."'
of Law before the Municipal Board. The Board investigated
Q: Jojo filed a criminal complaint against Art for theft of
Gatdula but before the case could be decided, the City
abackpack worth P150.00 with the Office of the City
Charter was approved. The City Fiscal, citing Section 30 of
Prosecutor of Manila. The crime is punishable with arresto
the City Charter, asserted that he was authorized thereunder
mayor to prision correctional in its minimum period, or not
to investigate city officers and employees. The case against
to exceed 4 years and 2 months. The case was assigned to
Gatdula was then forwarded to him, and a re-investigation
Prosecutor Tristan and he applied Sec. 8(a) of Rule 112 which
was conducted. The Fiscal's Office subsequently recommended
reads: "(a) If filed with the prosecutor. If the complaint is
dismissal. On January 11, 1966, the City Mayor returned the
filed directly with the prosecutor involving an offense
records of the case to the City Fiscal for the submission of an
punishable by imprisonment of less than four (4) years, two
appropriate resolution but no resolution was submitted. On
(2) months and one (1) day, the procedure outlined in Sec.
March 3, 1968, the City Fiscal transmitted the records to the
3(a) of this Rule shall be observed. The Prosecutor shall act
City Mayor recommending that final action thereon be made
on the complaint within ten (10) days from its filing."
by the City Board of Investigators (CBI). Although the CBI
did not conduct an investigation, the records show that both On the other hand, Sec. 3(a) of Rule 112 provides: "(a) The
the Municipal Board and the Fiscal's Office exhaustively complaint shall state the address of the respondent and shall
heard the case with both parties afforded ample opportunity be accompanied by affidavits of the complainant and his
to adduce their evidence and argue their cause. The Police witnesses as well as other supporting documents to establish
Commission found Gatdula guilty on the basis of the records probable cause. x x x"
forwarded by the CBI. Gatdula challenged the adverse
decision of the Police Commission theorizing that he was Since Sec. 8(a) authorizes the Prosecutor to decide the complaint
deprived of due process. Questions: Is the Police Commission on the basis of the affidavits and other supporting documents
bound by the findings of the City Fiscal? Is Gatdula's submitted by the complainant, Prosecutor Tristan did not
notify Art nor require him to submit a counter-affidavit. He

626 BAR 2010.

625 White Light Corporation v. City of Manila, G.R. No. 122846, 20 January 2009. 627 Mangobat v. De Castro, G.R. No. L-33892, 28 July 1988.
 252 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 253
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0
proceeded to file the Information against Art with the (c) void for vagueness;
Metropolitan Trial Court. Art vehemently assails Sec. 8(a) of
Rule 112 as unconstitutional and violative of due process and (d) void conclusively.631
his rights as an accused under the Constitution for he was A: (a)632
not informed of the complaint nor was he given the opportunity
to raise his defenses thereto before the Information was filed. Q: Compare and contrast "overbreadth doctrine" from
"void-for-vagueness" doctrine."'
Rule on the constitutionality of Sec. 8(a) of Rule 112. Explain.628
A: The contention of Art is not meritorious. The right to be A: While the overbreadth doctrine decrees that a governmental
purpose may not be achieved by means in a statute which sweep
informed of the complaint and to be given the opportunity to
unnecessary broadly and thereby invades the area of protected
raise one's defenses does not apply to preliminary investigation.
freedom, a statute is void for vagueness when it forbids or
Preliminary investigation is merely procedural. It may be dispensed
requires the doing of an act in terms so vague that men of
with without violating the right of the accused to due process.'
common intelligence cannot necessarily guess at its meaning and
1. Void-for-Vagueness Rule differ as to its application.634

Q: What is the doctrine of void-for-vagueness? Q: An ordinance prohibits "notorious street gang members"
from loitering in public places. The police are to disperse them
A: The void-for-vagueness doctrine states that "a statute which or, if they refuse, place them under arrest. The ordinance
either forbids or requires the doing of an act in terms so vague enumerates which police officers can make arrest and defines
that men of common intelligence must necessarily guess at its street gangs, membership in them, and public areas. The
meaning and differ as to its application, violates the first essential of ordinance was challenged for being vague regarding the meaning
due process of law.'" of "notorious street gang members." Is the ordinance valid?635

Q: A criminal statute that "fails to give a person of ordinary A: No, the ordinance is not valid for being vague. It leaves the
intelligence fair notice that his contemplated conduct is public uncertain as to what conduct it prohibits. In the case of
forbidden by statute" is: Lanzetta v. State of New Jersey, cited by the Supreme Court in
Romualdez v. Sandiganbayan,636 a challenge was posed to a
(a) void for fair notice; statute defining a "gangster" and prescribing appropriate penalties,
(b) void for arbitrariness; for being void for vagueness. The U.S. Supreme Court ruled that
the definition of a "gang" under the statute was vague, and the
statute void for vagueness. It was of no moment that the

631 BAR 2012.

632 Estrada v. Sandiganbayan, G.R. No. 148560, 19 November 2001.
628 BAR 2016. 633 BAR 2010.
Lucero, G.R. No. L-2068, 20 October 1948.
629 Bustos V.
G.R. No. 148560, 19 November 2001.
630 634 Estrada v. Sandiganbayan,
Erinita-Malate Hotel and Motel Operators Ass'n v. City Mayor, G.R. 635 BAR 2011.
No. L-24693. July 31, 1967. 636 G.R. No. 152259, 29 Jul) 2004.
 254 COMPENDIOUS BAR REVIEWER
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111 BILL OF RIGHTS 255

information against the accused described the offense with A: A statute or act may be said to be vague when it lacks
particularity. No one may be required at peril of life, liberty or comprehensible standards that men of common intelligence must
property to speculate as to the meaning of penal statutes. All are necessarily guess at its meaning and differ in its application. In
entitled to be informed as to what the State commands or forbids.' such instance, the statute is repugnant to the Constitution in two
(2) respects: (1) it violates due process for failure to accord
Q: Mia filed her Certificate of Candidacy as a senator in the persons, especially the parties targeted by it, fair notice of what
May 13, 2019 elections as an independent candidate, indicating conduct to avoid; and (2) it leaves law enforcers unbridled
that she is a lawyer and a teacher. Thereafter, the Comelec discretion in carrying out its provisions and becomes an arbitrary
Law Department motu proprio filed a petition to declare Mia flexing of the Government muscle.638
as a nuisance candidate alleging that she had no bona fide
intent to run for public office. Moreover, Mia will not be able b) Does the last phrase of Section 69 of the OEC violate
to sustain the financial rigors of waging a nationwide campaign the due process clause?
without clear proof of financial capacity. On the other hand,
Mia countered that she has a bona fide intention to run for A: No. The last phrase in Section 69 of the OEC does not
violate the due process clause. Jurisprudence instructs that a law
public office given her government platforms covering education,
couched in the imprecise language is valid if it can be clarified
agriculture, health, and housing programs. Also, Mia claimed
that she could wage a nationwide campaign because she
sustained a paid website dedicated to her senatorial bid,
I through proper judicial construction. The void-for-vagueness
doctrine does not apply as against legislations that are merely
couched in imprecise language but which nonetheless specify a
commissioned social media platforms like Facebook to advertise
her, and secured support statements from various groups.
Lastly, Mia averred that her frequent domestic and international
travels are sufficient proof of her financial capacity.
i standard though defectively phrased; or to those that are
apparently ambiguous yet fairly applicable to certain types of
activities. The first may be 'saved' by proper construction, while
no challenge may be mounted as against the second whenever
After the COMELEC declared Mia as a nuisance candidate, directed against such activities. With more reason, the doctrine
Mia elevated her case to the Supreme Court and argued that cannot be invoked where the assailed statute is clear and free
the last phrase in Section 69 of the Omnibus Election Code from ambiguity, as in this case.
(OEC) which reads "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
I Evidently, Section 69 of the OEC enumerated the instances when
a candidate is considered a nuisance such as when the CoC is
filed: (1) to put the election process in mockery or disrepute; (2)
to cause confusion among the voters by the similarity of the
will of the electorate" is constitutionally infirm for being
vague which violates the due process clause. i names of the registered candidates; and (3) under circumstances
or acts which clearly demonstrate that the candidate has no bona
a) When is a statute considered vague? fide intention to run for the office for which the certificate of
candidacy has been filed. More importantly, Section 69 of the
0EC qualified that the objective in filing such CoC is to prevent

637 1d.
638 De Alban v. Commission on Elections, G.R. No. 243968, March 22, 2022.
 256 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 257
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"a faithful determination of the true will of the electorate." The covers every election. Lastly, Section 69 of the OEC applies
third instance refers to the candidate's "circumstances" or "acts" indiscriminately to all CoCs filed in bad faith.64 '
that would demonstrate that the purpose of the filing of the CoC
is inconsistent with the definition of a candidate as someone 2. Judicial and Administrative Due Process
"aspiring for or seeking elective public office." The common
thread of the three instances is that the nuisance candidates filed Q: What are the minimum requirements of procedural due
their CoCs not to aspire or seek public office but to prevent a process in judicial proceedings?
faithful determination of the people's true will. Relevantly, the
A: The minimum requirements of due process in judicial
assailed last phrase in Section 69 of the OEC should cover all proceedings are (a) there must be a court or tribunal clothed with
acts or circumstances clearly demonstrating that the CoC was judicial power to hear and determine the matter before it; (b)
filed in bad faith.639 jurisdiction must be lawfully acquired over the person of the
c) Mia also argues that the last phrase of Section 69 of defendant or over the property which is the subject of the
the OEC infringes the equal protection clause for being proceeding; (c) the defendant must be given an opportunity to be
subjective and arbitrary. Rule on the contention. heard; and (d) judgment must be rendered upon lawful hearing.'

A: The last phrase in Section 69 of the OEC does not violate the Q: What is administrative due process?
equal protection clause which simply provides that all persons or
A: The essence of due process is to be heard, and, as applied to
things similarly situated should be treated in a similar manner,
administrative proceedings, this means a fair and reasonable
both as to rights conferred and responsibilities imposed. The
opportunity to explain one's side, or an opportunity to seek a
principle recognizes reasonable classification which: (1) must
reconsideration of the action or ruling complained of. Administrative
rest on real and substantial distinctions; (2) must be germane to
due process cannot be fully equated with due process in its strict
the purpose of the law; (3) must not be limited to existing
judicial sense, for in the former a formal or trial-type hearing is
conditions only; and (4) must apply equally to all members of
not always necessary, and technical rules of procedure are not
the same class. The confluence of these elements is present.
strictly applied.'
There can be no dispute about the dissimilarities between CoCs
filed in good faith and those falling within the three instances in B. Equal Protection Clause (1987 CONST.. Art. HI, Sec, 1)
Section 69 of the OEC that prevent a faithful determination of
the true will of the electorate. The distinction is also aligned to 1. Requisites for Valid Classification
the policy to ensure rational, objective, and orderly elections.
The cancellation of the CoCs of nuisance candidates is necessary Q: What are the requisites for valid classification?
to maintain the purity and fairness of the elections. The
A: The requisites for a valid classification are:
classification is not limited to existing conditions only since it
1. The classification rests on substantial distinctions;

64° Id.
G.R. No. L-11390, 26 March 1918.
641 El Banco Espahol-Filipino v. Pcdanca,
"9 Id. 642 Vivo v. PAGCOR, G.R. No. 187854, 12 November 2013.
 258 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 259
ON POLITICAL LAW

2. It is germane to the purpose of the law; garga insists that she is qualified for the exemption and that
Section 16 (c) of the IRR of RA No. 10029 is unconstitutional.
3. It is not limited to existing conditions only; and
According to Marga, the completion of at least 100 hours of
4. It applies equally to all members of the same class.' updating workshops and training programs violates the
equal protection clause because it creates a classification
Q: Republic Act No. 10029 or the Philippine Psychology Act beyond the ambit of RA 10029 and discriminates against
of 2009 mandated that all applicants for registration to applicants who are professionally based in the provinces.
practice psychology must pass a licensure examination.
Does Section 16 (c) of the IRR of R.A. No. 10029 violate the
Section 16(C) of the said law's Implementing Rules and equal protection clause?
Regulations (IRR) exempts from examination psychologists
or employees holding positions as psychologists presently A: No. Section 16 (c) of the IRR of RA No. 10029 is not in
employed in various government and private agencies, who conflict with the equal protection clause, which simply provides
have a bachelor's degree in psychology, accumulated a minimum that all persons or things similarly situated should be treated in a
of ten (10) years' work experience in the practice of psychology similar manner, both as to rights conferred and responsibilities
as a psychologist, and have updated their professional education imposed. The principle recognizes reasonable classification
in various psychology-related functions. "Professional education which: (1) must rest on real and substantial distinctions; (2) must
in various psychology-related functions" shall mean completion be germane to the purpose of the law; (3) must not be limited to
of at least 100 hours of updating workshops and training existing conditions only; and (4) must apply equally to all
members of the same class. The confluence of these elements is
programs across various areas and specialties in psychology
conducted by duly established national or international present in the required "completion of at least 100 hours of
updating workshops and training programs." There can be no
organizations of psychologists, psychiatrists, and other allied
mental health professionals, in the last five (5) years dispute about the dissimilarities between those who have a
Bachelor's Degree in Psychology and those who have graduated
immediately preceding the effectivity of R.A. 10029.
from advanced studies, Doctoral Degree and Master's Degree in
Marga applied for registration as a psychologist without Psychology. The distinction is also aligned to the policy of the
examination but the Board of Psychology informed her that law to regulate the practice of psychology and to protect the
she has insufficient work experience and has not updated her public from incompetent individuals offering psychological
professional education. Aggrieved, Marga appealed to the services. The classification is not limited to existing conditions
PRC. Yet, the PRC denied Marga's appeal for failure to only since its purpose is to nurture competent and assiduous
substantiate her claim that she worked as a psychologist for a psychologists whose practices and services can sustainably
minimum accumulated period of ten (10) years. Moreover, achieve excellence and competitiveness in the future both in the
the PRC pointed out that Marga did not update her professional domestic and global arena. Lastly, the requirement applies
education by completing at least 100 hours of workshops and indiscriminately to all holders of Bachelor's Degree prior to the
training programs, as required by the IRR.

643 Imbong v. Ochoa Jr., G.R. No. 204819, 08 April 2014.

 260 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 261
ON POLITICAL LAW

enactment of the law who intend to avail the exemption from pursuant to his duty to enforce all laws and ordinances and to
licensure examinations.' maintain public order.'
Q: A law is passed intended to protect women and children 2 Standards of Review
from all forms of violence. When a woman perceives an act
to be an act of violence or a threat of violence against her, she Rational Basis Test
may apply for a Barangay Protection Order (BPO) to be
issued by the Barangay Chairman, which shall have the force Q: ABC Company argues that Section 47 of Republic Act
and effect of law. Conrado, against whom a BPO had been No. 8791, or the General Banking Law of 2002, violates its
issued on petition of his wife, went to court to challenge the right to equal protection since the law provides a shorter
constitutionality of the law. He raises the following grounds: period for redemption of three (3) months or earlier to
juridical entities compared to the one (1) year redemption
a) The law violates the equal protection clause, because period given to natural persons. This discrimination, it argued,
while it extends protection to women who may be victims gives "undue advantage to lenders who are non-banks." Rule
of violence by their husbands, it does not extend the same on the contention.
protection to husbands who may be battered by their wives.
A: ABC Company's claim that Section 47 infringes the equal
b) The grant of authority to the Barangay Chairman to issue a protection clause as it discriminates mortgagors/property owners
Barangay Protection Order (BPO) constitutes an undue who are juridical persons is bereft of merit. A statute that treats
delegation of judicial power, because obviously, the one class differently from another class will not violate the equal
issuance of the BPO entails the exercise of judicial power. protection clause as long as the classification is valid. In Zomer
Development Company, Inc. v. Court of Appeals,648 the Supreme
Rule on the validity of the grounds raised by Con rado, with
Court held that the rational basis test may be applied to
reasons.645
determine the constitutionality of Section 47.
A:
The rational basis test requires only that there be a legitimate
a) The law does not violate the equal protection clause. It is based government interest and that there is a reasonable connection
on substantial distinctions. The unequal power relationship between it and the means employed to achieve it. A longer period
between women and men, the greater likelihood for women of redemption is given to natural persons whose mortgaged
than men to be victims of violence, and the widespread properties are more often used for residential purposes. A shorter
gender bias and prejudice against women all make for real period of redemption is given to juridical persons whose
differences.646 properties are more often used for commercial purposes. The
shorter period is aimed to ensure the solvency and liquidity of
b) The grant of authority to the Barangay Chairman to issue a banks. This helps minimize the period of uncertainty in the
Barangay Protection Order is a purely executive function ownership of commercial properties and enable mortgagee-banks
to dispose of these acquired assets quickly.
644 Sobrejuanne-Flores v. Pilando, Jr., G.R. No. 251816, November 23, 2021.
64' BAR 2016. • " 7 Id.
616
Garcia v. Drawl, G.R. No. 179267, June 25, 2013. 648 G.R. No. 194461, 07 January 2020.
 262 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 263
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There is, thus, a legitimate government interest in the protection the forthcoming party-list elections. The COMELEC denied
of the banking industry and a legitimate government interest in the application for accreditation on the ground that GBTYA
the protection of foreclosed residential properties owned by espouses immorality which offends religious dogmas. GBTYA
natural persons. The shortened period of redemption for juridical challenges the denial of its application based on moral grounds
65'
entities may be considered to be the reasonable means for the because it violates its right to equal protection of the law.
protection of both these interests.
a) What are the three (3) levels of test that are applied
Strict Scrutiny Test in equal protection cases? Explain.

Q: What is the Strict Scrutiny Test and when is it applied? A: The three levels of test applied in equal protection cases are
0
the following:
A: The strict scrutiny test applies when a classification either (i)
interferes with the exercise of fundamental rights, including the iffig First, the STRICT SCRUTINY TEST which is applied when the
basic liberties guaranteed under the Constitution, or (ii) burdens legislative classification disadvantages a suspect class or impinges
suspect classes. A "suspect class" is defined as "a class saddled upon a fundamental right, the statute must fall unless the
with such disabilities, or subjected to such a history of purposeful government can show that the classification serves a compelling
unequal treatment, or relegated to such a position of political governmental interest.
powerlessness as to command extraordinary protection from the Second, the INTERMEDIATE SCRUTINY TEST, when the
majoritarian political process.649 According to this standard, a classification, while not facially invidious, gives rise to recurring
legislative classification that impermissibly interferes with the constitutional difficulties or disadvantages a quasi-suspect class.
exercise of fundamental right or operates to the peculiar class To survive intermediate scrutiny, the law must not only further
disadvantage of a suspect class is presumed unconstitutional. an important government interest and be related to that interest,
The burden is on the government to prove that the classification but the justification must be genuine and must not depend on
is necessary to achieve a compelling state interest and that it is broad generalizations.
the least restrictive means to protect such interest. Later, the
strict scrutiny standard was used to assess the validity of laws Lastly, the RATIONALITY TEST, if neither the strict nor the
dealing with the regulation of speech, gender, or race as well as intermediate scrutiny is appropriate, the statute will be tested for
other fundamental rights, as expansion from its earlier applications mere rationality. The presumption is in favor of the classification, of
to equal protection.6" the reasonableness and fairness of state action, and of legitimate
grounds of distinction, if any such grounds exist, on which the
Intermediate Scrutiny Test State acted.652
Q: The Gay, Bisexual and Transgender Youth Association b) Which of the three (3) levels of test should be applied
(GBTYA), an organization of gay, bisexual, and transgender to the present case? Explain.
persons, filed for accreditation with the COMELEC to join

BAR 2015.
651

6" Id. 652Garcia v. Drilon, G.R. No. 179267, June 25, 2013. Concurring
650
Disini v, Secretary of Justice, G.R. No. 203335, 11 February 2014. Opinion of J. Leonardo De-Castro.
 264 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 265
ON POLITICAL LAW

A: Classification on the basis of sexual orientation is a quasi- person to believe that an offense has been committed by the person
subject classification that prompts intermediate review. Sexual sought to be arrested or held for trial, as the case may be.655
orientation has no relation to a person's ability to contribute to
society. The discrimination that distinguishes the gays and lesbian Search Warrant
persons are beyond their control. The group lacks sufficient
political strength to bring an end to discrimination through Q: Explain the probable cause needed to be proven for the
political means.653 issuance of a search warrant.

C. Arrest, Search and Seizure; Requisites; Exclusionary A: The standard for determining "probable cause" for the judge
issuing a search warrant is the existence of such facts and
Rule (1987 CONST., Art. III, Sec. 2)
circumstances which would lead a reasonably discreet and prudent
Requisites of a Valid Warrant man to believe that an offense has been committed and that the
objects sought in connection with the offense are in the place
Q: What are the requisites of a valid warrant? sought to be searched.'

A: The requisites for a valid warrant are: Q: Based on the application filed by and examination under
oath of applicant PO2 X, RTC Judge Moe issued Search
1. it must be issued upon "probable cause";
Warrant No. 97 after finding probable cause that Accused
2. probable cause must be deteimined personally by the judge; Deez has possession and control of shabu which is kept in her
house at Gitna, Brgy. Cuyab, San Pedro, Laguna. In support
3. such judge must examine under oath or affirmation the of the application, an informant submitted two sketches of
complainant and the witnesses he may produce; and the house. Under the search warrant, the police searched the
4. the warrant must particularly describe the place to be house. Approximately nine grams of shabu were then found
I and seized from the premises. Deez was immediately arrested
searched and the persons or things to be seized.'
and detained for alleged violation of Section 11 of R.A. No.
Arrest Warrant r 9165, or the Comprehensive Dangerous Drugs Act of 2002.

Q: Explain the probable cause needed to be proven for the Deez filed a Motion to Quash Search Warrant No. 97 on the
issuance of an arrest warrant. ground that the same was in the nature of a general warrant
which failed to describe with particularity the place to be
A: The standard for determining "probable cause" for the judge searched. Particularly, Deez averred in her motion that: (a)
issuing a warrant of arrest is the existence of such facts and house number 972 did not appear in her home address as
circumstances that would lead a reasonably discreet and prudent stated in the warrant; and (b) the warrant failed to distinguish
petitioner's unit, which was the place intended to be searched,

A
from the other units or rooms representing the four other

653 Ang Ladlad v. COA1ELEC, G.R. No. 190582, 08 April 2010. 655 Pestilos v. Generoso and People, G.R. No. 182601, 10 November 2014.
654 People v. Chua, G.R. No. 149878, 01 July 2003. 6'6 People v. Salibas, G.R. No. 244045, 16 June 2020.
266 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 267
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households inside the house located in Gitna, Brgy. Cuyab, property to be seized, and that a search warrant may be said to
San Pedro, Laguna. Is petitioner's contention correct? particularly describe the things to be seized when the description
therein is as specific as the circumstances will ordinarily allow it
A: No, Petitioner's contention is not correct. The search warrant
here sufficiently describes the place to be searched with sufficient to be described."'
particularity.
The test of whether the requirement of definiteness or particularity
• Exclusionary Rule

Q: What is the exclusionary rule or the doctrine of the fruit

has been met is whether the description of the place to be searched I. of the poisonous tree?
under the warrant is sufficient and descriptive enough to prevent
a search of other premises located within the surrounding area or A: This rule prohibits the issuance of general warrants that
community. A "place" may refer to a single building or structure, 4' encourage law enforcers to go on fishing expeditions. Evidence
or a house or residence, such as in the case at bar. obtained through unlawful seizures should be excluded as evidence
because it is "the only practical means of enforcing the constitutional
The search warrant in the instant case clearly complied with the injunction against unreasonable searches and seizures." It ensures
foregoing standard since it particularly described the place to be that the fundamental rights to one's person, houses, papers, and
searched, which is petitioner's "house at Gitna, Brgy. Cuyab, San effects are not lightly infringed upon and are upheld."'
Pedro, Laguna." The subject search warrant sufficiently described
the place to be searched with clear indication that the same was • Warrantless Arrests and Detention
intended to authorize a search of the entire house of petitioner,
albeit confined to the area of her house, to the exclusion of the Q: What are the valid warrantless arrests?
other two structures or buildings similarly located along the
A: The following are valid warrantless arrests:
street of Gitna. Simply put, the constitutional requirement of
definiteness has been met. 1. When caught in flagrante delicto;
The omission of the warrant to (a) indicate that the place to be 2. Hot pursuit;
searched contained five rooms which were separately occupied
by petitioner and her siblings; and (b) confine the search to 3. If a person lawfully arrested escapes or is rescued;609
petitioner's unit is inconsequential and, therefore, does not affect 4. In case of continuing offense;66°
the warrant's validity. The units or rooms where petitioner and
her siblings lived all form an integral part of the house, which, as 5. If the accused released on bail attempts to depart from
already discussed, was sufficiently described with particularity the Philippines without permission of the court;661
under the warrant. The rooms inside the house, which were in
fact occupied by family members of petitioner, cannot be treated 6. Doctrine of Exigent Circumstance.662
separately as they form part of the house where petitioner
actually resided. 657 Diaz v. People, G.R. No. 213875, 15 July 2020.
658 People v Cogaed, G.R. No. 200334, 30 July 2014.
The requirement of particularity as to the things to be seized 659 Rules of Court, Rule 113, Sec. 5.
660
does not require technical accuracy in the description of the Umil v. Ramos, G.R. No. 79731, 09 July 1990.
661 Rules of Court, Rule 114, Sec. 23.

1.
 268 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 269
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Q: On April 6, 2004, members of the PNP of San Fernando, search have a reasonable or probable cause to believe before the
Bukidnon, set up a mobile check point pursuant to the search that they will find the instrumentality or evidence
implementation of COMELEC Resolution No. 6446, imposing pertaining to a crime in the vehicle to be searched.
the COMELEC gun ban.
Although as a general rule, motorists as well as pedestrians passing
While conducting the routine inspection in the check point, the through checkpoints may only be subjected to a routine inspection,
police officers flagged down petitioner. They asked petitioner vehicles may also be stopped to allow authorized personnel to
for the Certificate of Registration (CR) and Official Receipt conduct an extensive search when there is probable cause which
(OR) of his motorcycle. Petitioner failed to produce these justifies a reasonable belief on the part of the law enforcers that
documents. either the motorist is a law offender, or that the contents of the
vehicle are, or have been, instruments of some offense.
The law enforcers became suspicious and asked petitioner to
open the tools compartment and driver's seat of his motor As may be gleaned from the records of this case, petitioner
vehicle. They found five bundles of marijuana placed and passed by the mobile check point. The motorcycle was then flagged
wrapped in a cellophane. Petitioner was brought to the police down, and petitioner was asked for his OR/CR. However, he
station. Upon arrival at the police station, petitioner was failed to produce the documents. The police authorities then
interviewed by the police officers and the confiscated dried became suspicious that the motorcycle might have been stolen
marijuana leaves were marked. The specimen was then considering petitioner's failure to produce the OR/CR. Moreover,
brought to the PNP Crime Laboratory and the result of the upon inspection of the motor vehicle, the police officers found a
examination yielded positive for the presence of marijuana. small bundle of dried marijuana placed inside the compartment
Petitioner's urine examination also yielded positive for use of and driver's seat.663
prohibited drugs.
Warrantless Searches
An Information was filed against petitioner for illegal
possession of dangerous drugs. Was there a valid warrantless Q: What are the valid warrantless searches?
arrest in this case?
A: The following are valid warrantless searches:
A: Yes, there was a valid warrantless arrest in the case at bar.
1. Warrantless search incidental to a lawful arrest recognized
This case presents us with a situation wherein an individual was under Section 12, Rule 126 of the Rules of Court and by
arrested during a checkpoint search. Setups of the military or prevailing jurisprudence;
police checkpoints are considered a variant of searching moving
vehicles which are not illegal per se. Checkpoint searches are 2. Seizure of evidence in "plain view";
considered valid as long as it is limited to a mere routine 3. Search of a moving vehicle;
inspection. However, when a vehicle is stopped and subjected to
an extensive search instead of a mere routine inspection, such 4. Consented warrantless search;
search remains valid as long as the officers who conducted the

662
People v. De Gracia, G.R. Nos. 102009-10, 06 July 1994. 663 Uy v. People, G.R. No. 217097, 23 February 2022.
 270 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 271
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5. Customs search; Thereafter, Saffy was arrested for the violation of R.A. No.
9165. Was there a valid warrantless search in this case?
6. Stop and Frisk; and
A: No, the warrantless search of the moving vehicle in this case
7. Exigent and Emergency Circumstances.664
was invalid. Probable cause is an indispensable requirement for
Q: What are the elements of a seizure in plain view? an extensive and intrusive warrantless search of a moving
vehicle. As held in the case of Caballes v. Court of Appeals,
A: The following are the elements of plain view seizure: probable cause means that there is the existence of such facts and
circumstances which could lead a reasonable discreet and prudent
I. a prior valid intrusion based on the valid warrantless man to believe that an offense has been committed and that the
arrest in which the police are legally present in the items, articles or objects sought in connection with said offense
pursuit of their official duties; or subject to seizure and destruction by law is in the place to
2. the evidence was inadvertently discovered by the police be searched.
who had the right to be where they are; Further, law enforcers cannot act solely on the basis of confidential
3. the evidence must be immediately apparent, and or tipped information in situations involving warrantless searches
and seizures. A tip is still hearsay no matter how reliable it may
4. "plain view" justified mere seizure of evidence without be. It is not sufficient to constitute probable cause in the absence
further search.665 of any other circumstance that will arouse suspicion. Hence, the
exclusive reliance on an unverified anonymous tip cannot engender
Q: Saffy was charged with the violation of the Dangerous probable cause that permits a warrantless search of a moving
Drugs Act (R.A. No. 9165) for transporting four (4) bricks of vehicle that goes beyond a visual search is now the prevailing
marijuana leaves. The evidence for the Prosecution established and controlling line of jurisprudence.
that an officer on duty at the Regional Public Safety Batallion
(RPSB) office received a phone call from a concerned citizen In this case, the police merely adopted the unverified and
that a certain male individual would be transporting marijuana unsubstantiated suspicion of another person, i.e., the person who
from Kalinga into the Province of Isabela. It further stated sent the text through RPSB Hotline. Apart from the information
that the male person who would transport the marijuana was passed on to them, the police simply had no reason to reasonably
wearing a collared white shirt with green stripes, red cap, believe that the passenger vehicle contained an item, article, or
and was carrying a blue sack on board a passenger jeepney. object which by law is subject to seizure and destruction. An
A joint checkpoint was organized at the command post. information coming from a complete and anonymous stranger,
When the jeepney was flagged down and saw Saffy seated at without the police officers undertaking even a semblance of
the rear side of the vehicle, the police officers inspected the verification, on their own, cannot reasonably produce probable
blue sack and the police officer saw 4 bricks of marijuana leaves. cause that warrants the conduct of an intrusive search.'

664 Alanibog v. People, G.R. No. 211214, 20 March 2019.

665 Id. 666 Sapla v. People, G.R. No. 244045, 16 June 2020.
 272 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 273
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Q: Pornographic materials in the form of tabloids, magazines bulge in the pants of Ernesto, the policeman frisked him and
and other printed materials, proliferate and are being sold found an unlicensed .22-caliber pistol inside Ernesto's right
openly in the streets of Masaya City. The city Mayor organized pocket. Ernesto was arrested, detained and charged. At the
a task force which confiscated these materials. He then trial, Ernesto, through his lawyer, argued that, policemen at
ordered that the materials be burned in public. Dominador, mobile checkpoints are empowered to conduct nothing more
publisher of the magazine, "Plaything", filed a suit, raising than a "visual search". They cannot order the persons riding
the following constitutional issues: (a) the confiscation of the the vehicle to alight. They cannot frisk, or conduct a body
materials constituted an illegal search and seizure, because search of the driver or the passengers of the vehicle.
the same was done without a valid search warrant and (b)
the Confiscation, as well as the proposed destruction of the Ernesto's lawyer this posited that:
materials, is a denial of the right to disseminate information, a) The search conducted in violation of the Constitution
and thus, violates the constitutional right to freedom of and established jurisprudence was an illegal search;
expression. Is either or both contentions proper? Explain thus, the gun which was seized in the course of an
your answer."' illegal search is the "fruit of the poisonous tree" and
A: is inadmissible in evidence.

a) The confiscation of the materials constituted an illegal search b) The arrest made as a consequence of the invalid search
and seizure, because it was done without a valid search was likewise illegal, because an unlawful act (the
warrant. It cannot be justified as a valid warrantless search search) cannot be made the basis of a lawful arrest.
and seizure, because such search and seizure must have been
Rule on the correctness of the foregoing arguments, with
an incident of a lawful arrest. There was no lawful arrest.'" reasons.6 71
b) The argument of Dominador that pornographic materials are
A:
protected by the constitutional right to freedom of expression
is erroneous, Obscenity is not protected expression."' In a) The warrantless search of motor vehicles at checkpoints
addition, Section 2 of Presidential Decree No. 969 requires should be limited to a visual search. Its occupants should not
the forfeiture and destruction of pornographic materials.'" be subjected to a body search.672 The "stop and frisk rule"
applies when a police officer observes suspicious activity or
Q: Ernesto, a minor, while driving a motor vehicle, was stopped unusual activity which may lead him to believe that a
at a mobile checkpoint. Noticing that Ernesto is a minor, criminal act may be afoot. The "stop and frisk" is merely a
SPO1 Jojo asked Ernesto to exhibit his driver's license but limited protective search of outer clothing for weapons.'
Ernesto failed to produce it. SPOT Jojo requested Ernesto to
alight from the vehicle and the latter acceded. Upon observing a

667 BAR 2016.

668 p .. a v.
Court of-Appeals, G.R. No. 80806, 5 October 1989. 67! BAR 2016.
669 Fernando v. Court of Appeals, G.R. No. 159751, 06 December 2006. 672 Aniog, Jr. v. COIVIELEC, G.R. No. 104961, 07 October 1994.
670
Nograles v. People, G.R. No. 191080, 21 November 2011. 673 Luz v. People, G.R. No.197788, 29 February 2012.
274 COMPENDIOUS BAR REVIEWER BILL 0F•RIGHTS 275
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b) Since there was no valid warrantless search, the warrantless A: The warrantless search was illegal. There was no probable
search was also illegal. The unlicensed .22 caliber pistol is cause to search the van. The shabu was not immediately apparent. It
inadmissible in evidence.' was discovered only after they opened the boxes. The mere
passive silence of Hades did not constitute consent to the
Q: Around 12:00 midnight, a team of police officers was on warrantless search.6"
routine patrol in Barangay Makatarungan when it noticed
an open delivery van neatly covered with banana leaves. Q: Using the description of the supplier of shabu given by
Believing that the van was loaded with contraband, the team persons who had been arrested earlier for selling it, the
leader flagged down the vehicle which was driven by Hades. police conducted a surveillance of the area indicated. When
He inquired from Hades what was loaded on the van. Hades they saw a man who fitted the description walking from the
just gave the police officer a blank stare and started to apartment to his car, they approached and frisked him and
perspire profusely. The police officers then told Hades that he did not object. The search yielded an unlicensed gun tucked
they will look inside the vehicle. Hades did not make any on his waist and shabu in his car. Is the search valid?fi7
reply. The police officers then lifted the banana leaves and
saw several boxes. They opened the boxes and discovered A: No, the search is not valid. Well-settled is the rule that where
several kilos of shabu inside. Hades was charged with illegal a person is searched without a warrant, and under circumstances
possession of illegal drugs. After due proceedings, he was other than those justifying a warrantless arrest, upon a mere
convicted by the trial court. On appeal, the Court of Appeals suspicion that he has embarked on some criminal activity, and/or
affirmed his conviction. for the purpose of discovering if indeed a crime has been
committed by him, then the search made of such person as well
In his final bid for exoneration, Hades went to the Supreme as his arrest is deemed illegal. In this case, the man did not
Court claiming that his constitutional right against unreasonable manifest any suspicious behavior that would give the police
searches and seizures was violated when the police officers sufficient reason to search him. Thus, the search is not valid.678
searched his vehicle without a warrant; that the shabu
confiscated from him is thus inadmissible in evidence; and Q: An informer told the police that a Toyota Car with plate
that there being no evidence against him, he is entitled to an ABC 134 would deliver an unspecified quantity of ecstasy in
acquittal. For its part, the People of the Philippines Forbes Park, Makati City. The officers whom the police sent
maintains that the case of Hades involved a consented to watch the Forbes Park gates saw the described car and
warrantless search which is legally recognized. The People flagged it down. When the driver stopped and lowered his
adverts to the fact that Hades did not offer any protest when window, an officer saw a gun tucked on the driver's waist.
the police officers asked him if they could look inside the The officer asked the driver to step out and he did. When an
vehicle. Thus, any evidence obtained in the course thereof is officer looked inside the car, he saw many tablets strewn on
admissible in evidence. Whose claim is correct? Explain.675

676 Caballes v. Court of Appeals, G.R. No. 136292, 15 January 2002.

6" Id. G7 BAR 2011.
675 BAR 2015. 678 Veridiano v. People, G.R. No. 200370, 07 June 2017.
 276 COMPENDIOUS BAR REVIEWER BILL OF•RIGHTS 277
ON POLITICAL LAW

the driver's seat. The driver admitted they were ecstasy. Is c. Students of secondary and tertiary schools x x x;
the search valid?679
d. Officers and employees of public and private offices x x x;
A: Yes, the search is valid. To justify a warrantless arrest, it is
not enough that the police officers were armed with reliable f. All persons charged before the prosecutor's office with a
information. Such reliable information must be combined with criminal offense having an imposable imprisonment
an accused's overt act indicating that he or she has committed, is of not less than 6 years and 1 day;"
committing, or is about to commit a crime. In this case, the petitioners contend that the assailed portions of Sec. 36 are
police acted based not only on reliable information but also on unconstitutional for violating the right to privacy, the right
the fact that an officer saw the driver carrying a gun. Thus, the against unreasonable searches and seizures and the equal
search is valid.680 protection clause. Decide if the assailed provisions are
unconstitutional."'
Q: When can evidence "in plain view" be seized without
need of a search warrant? Explain.68' A: The drug testing of students of secondary and tertiary schools
A: Evidence in plain view can be seized without need of a is valid.
search warrant if the following elements are present: Deterring their use of drugs by random drug testing is as important as
enhancing efficient enforcement. Random drug testing of officers
1. There was a prior valid intrusion based on the valid
and employees of public and private officers is justifiable. Their
warrantless arrest in which the police were legally present
expectation of privacy in office is reduced. The drug tests and
pursuant of their duties;
results are kept confidential. Random drug testing is an effective
2. The evidence was inadvertently discovered by the police way of deterring drug use and is reasonable.
who had the right to be where they were;
Public officials and employees are required by the Constitution
3. The evidence must be immediately apparent; and to be accountable at all times to the people and to serve them
with utmost responsibility and efficiency.
4. Plain view justified seizure of the evidence without
further search."' The mandatory testing of all persons charged before the prosecutor's
office of a criminal offense punishable with imprisonment of at
Q: Paragraphs c, d and f of Section 36 of Republic Act No. least six years and one day is void. They are not randomly
9165 provide: picked and are not beyond suspicions. They do not consent to the
procedure or waive their right to privacy.684
"Sec. 36. Authorized drug testing, x x x The following shall
be subjected to undergo drug testing: x x x.

679 BAR 2011.

680
People v. Tuazon, G.R. No. 175783, 03 September 2007. 683 BAR 2016.
681 BAR 2012. 684 Social Justice Society v. Dangerous Drugs Board, G.R. Nos. 157870,158633 &161658,
682 Caballes v. Court of Appeals, G.R. No. 136292, 15 January 2002. 03 November 2008.
 278 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 279
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Administrative Arrests standard, both the inception and the scope of the intrusion must
be reasonable.
Q: Can the Bureau of Immigration issue warrants of arrest
against the respondents in a deportation proceeding so that First, one must consider whether the action was justified at its
the latter may show cause why they should not be deported? inception. Second, one must determine whether the search as
actually conducted was reasonably related in scope to the
A: No. In Vivo v. Montesa,685 the Supreme Court held that the circumstances which justified the interference in the first place.
power to determine probable cause for warrants of arrest is Ordinarily, a search of an employee's office by a supervisor will
limited by the Philippine Constitution to the judge exclusively.
be justified at its inception when there are reasonable grounds for
The Constitution does not distinguish between warrants in a criminal suspecting that the search will turn up evidence that the employee is
case and administrative warrants in administrative proceedings. guilty of work-related misconduct, or that the search is necessary
D. Privacy of Communication and Correspondence; Exclusionary for a non-investigatory work-related purpose such as to retrieve a
needed file. Meanwhile, the search will be permissible in its
Rule (1987 CONST., Art. III, Sec. 3; R.A. No. 4200);
scope when "the measures adopted are reasonably related to the
Informational, Decisional, Locational Privacy)
objectives of the search and not excessively intrusive in light of
Private and Public Communications the nature of the misconduct.

Q: What are the requisites for the existence of the right Q: Is the employer's monitoring of an employee's laptop who
to privacy? is on a work-from-home setup a violation of the employee's
right to privacy under the Constitution?
A: The existence of privacy right involves a two-fold requirement:
first, that a person has exhibited an actual (subjective) expectation A: No. First, the Bill of Rights governs the relationship between
of privacy; and second, that the expectation be one that society is the individual and the State. Its concern is not the relation
prepared to recognize as reasonable (objective).686 between private individuals. What it does is to declare some
forbidden zones in the private sphere inaccessible to any power
Q: Is the search of a government employee's office computer holder.'" In the absence of governmental interference, the liberties
for alleged work-related misconduct a violation of the granted by the Constitution cannot be invoked. Thus, the
employee's right to privacy under the Constitution? invocation of the violation of the right to privacy in this case is
misplaced. Second, and more importantly, even the law (i.e.,
A: It depends. In Polio v. Constantino-David,687 the Supreme R.A. No. 11165 or the Telecommuting Act) requires that the
Court held that public employer intrusions on the constitutionally employer shall be responsible for taking the appropriate measures to
protected privacy interests of government employees for non- ensure the protection of data used and processed by the
investigatory, work-related purposes, as well as for investigations of telecommuting employee for professional purposes. Meanwhile,
work-related misconduct, should be judged by the standard of the telecommuting employee shall ensure that confidential and
reasonableness under all the circumstances. Under this reasonableness proprietary information are protected at all times. Thus, for this

685 G.R. No. L-24576, 29 July 1968.

686 Polio v. Constantino-David, G.R. No. 181881, 18 October 2011.
687 id. 688 People v. Marti, G.R. No. 81561, 18 January 1991.
 280 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 281
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purpose, the employer is entitled under the law to monitor the at the lobby of the hotel barely 30 minutes before the killing.
employee's laptop who is on a work-from-home setup. The accused objects to the admission of the videotape
recording on the ground that it was taken without his
Nonetheless, the employers must be transparent to the employees
knowledge or consent, in violation of his right to privacy and
and notify them that they are being monitored, and they should
the Anti-Wire Tapping law. Resolve the objection with reasons.692
implement clear policies with regard to its monitoring procedures.
Lastly, less privacy-intrusive means of monitoring should be A: The objection should be overruled. What the law prohibits is
considered by the employers rather than excessive and the overhearing, intercepting, and recording of private communications.
disproportionate mechanism in monitoring such as the use of Since the exchange of heated words was not private, its videotape
tracking mouse movements, recording keystrokes, taking random recording is not prohibited.693
photos of the computer screen, enabling webcams to take a
picture of the employee, etc.'" Q: A civil case damages was filed by Socorro against Ester
alleging that in a confrontation in the latter's office, Ester
When Intrusion is Allowed allegedly vexed, insulted and humiliated Socorro in a "hostile
and furious mood" and in a manner offensive to Socorro's
Q: When is an intrusion of a person's privacy of communication dignity and personality, "contrary to morals, good customs
and correspondence valid? and public policy."
A: A valid intrusion into a person's communications and • In support of her claim, Socorro produced a verbatim
correspondence may be allowed (a) upon lawful order of the transcript of the event and sought moral damages, attorney's
court; or (b) when public safety or order requires such intrusion fees and other expenses of litigation. The transcript on which
as prescribed by law.69° the civil case was based was culled from a tape recording of
the confrontation made by Soccoro.
Exclusionary Rule
• As a result of Socorro's recording of the event and alleging
Q: What is the exclusionary rule in relation to right to that the said act of secretly taping the confrontation was
privacy of communication? illegal, Ester filed a criminal case against Socorro for
A: Any evidence obtained in violation of the right to privacy of violation of Republic Act 4200, entitled "An Act to prohibit
communication and correspondence shall be inadmissible for ■ and penalize wire-tapping and other related violations of
any purpose in any proceeding."' private communication, and other purposes." In her defense,
Soccoro argues:
Q: In a criminal prosecution for murder, the prosecution
a) That R.A. 4200 refers to the taping of a
presented, as witness, an employee of the Manila Hotel who
communication by a person other than a participant
produced in court a videotape recording showing the heated
to the communication; and
exchange between the accused and the victim that took place

689 NPC PHE Bulletin No. 14 (Updated FAQs), 05 June 2020.

690 CONST., Art. III, Sec. 3 (1). 692 BAR 2010.
691 CONST., Art. III, Sec. 3 (2). 693 Navarro v. Court of.4ppeals, G.R. No. 121087, 26 August 1999.
 282 COMPENDIOUS BAR REVIEWER BILL OF•RIGHTS 283
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b) The substance or content of the conversation must be A: Locational privacy, also known as situational privacy, pertains
alleged in the Information, otherwise the facts charged to privacy that is felt in a physical space. It may be violated
would not constitute a violation of R.A. 4200. through an act of trespass or through an unlawful search.
Rule on the correctness of the foregoing arguments, with reasons. Meanwhile, informational privacy refers to one's right to control "the
processing—i.e., acquisition, disclosure and use-of personal
A: Both arguments of Socorro are without merit for the information."
following reasons:
Decisional privacy, regarded as the most controversial among the
a) R.A. 4200 clearly and unequivocally makes it illegal for any person,
three, refers to one's right "to make certain kinds of fundamental
not authorized by all the parties to any private communication to
choices with respect to their personal and reproductive autonomy.696
secretly record such communication by means of a tape recorder.
The law makes no distinction as to whether the party sought to Q: XXX, 24 years old, met the victim, AAA, who was only 14
be penalized by the statute ought to be a party other than or years old, in the canteen where he works. Their relationship
different from those involved in the private communication. The started when the younger sibling of AAA told XXX that AAA
statute's intent to penalize all persons unauthorized to make such had a crush on him. Later, AAA sent XXX a request in his
recording is underscored by the use of the qualifier "any". Facebook Messenger, which he accepted. The petitioner and
Consequently, even a person privy to a communication who records AAA would then exchange messages on Facebook Messenger
his private conversation with another without the knowledge of and after some time, XXX courted AAA for two weeks, until
the latter will qualify as a violator under R.A. 4200; and they became sweethearts on April 2016.
b) The nature of the conversations is immaterial to a violation of Sometime in June 2016, BBB, the mother of AAA, learned of
the statute. The substance of the same need not be specifically their relationship. She discovered the relationship because
alleged in the information. What R.A. 4200 penalizes are the acts AAA would borrow her cellphone to access the latter's
of secretly overhearing, intercepting or recording private Facebook account. BBB disapproved of their relationship
communications by means of the devices enumerated therein. because AAA was still too young.
The mere allegation that an individual made a secret recording of
a private communication by means of a tape recorder would On November 2016, BBB was shocked when she read the
suffice to constitute an offense under Section 1 of R.A. 4200.694 conversation between XXX and AAA. She found that petitioner
was coaxing her daughter to send him photos of the latter's
Informational, Decisional, and Locational Privacy breast and vagina. AAA relented and sent petitioner the photos
he was asking. When AAA learned that her mother read
Q: Define (a) Informational, (b) Decisional, and (c) Locational their conversation, she rushed to a computer shop to delete
Privacy.6" her messages. BBB, however, was able to force her to open
XXX's Facebook messenger account to get a copy of their
conversation.

694
Ramirez v. Court of Appeals, G.R. No. 93833, 28 September 1995. • Cadajas v. People, G.R. No. 247348, 16 November 2021, citing J. Leonen, Separate
696
695 BAR 2010. Opinion in Versoza v. People, G.R. No. 184535, September 03, 2019.
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XXX argues that BBB's act of forcing AAA to open his Facebook his account. Having been given authority to access his Facebook
account and obtain a copy of their conversation violates his Messenger account, XXX's reasonable expectation of privacy, in
constitutional right to privacy. Thus, the screenshots obtained so far as AAA is concerned, had been limited. Thus, there is no
should be taken as evidence against him. Rule on XXX's contention. violation of privacy to speak of.'
A: XXX's contention has no merit. The Bill of Rights was intended E. Freedom of Speech and Expression (1987 CONST., Art.
to protect private individuals against government intrusions. III, Secs. 4 and 18(1))
Hence, its provisions are not applicable between and amongst
private individuals. In this case, the photographs and conversations 1. Prior Restraint and Subsequent Punishment
in the Facebook Messenger account that were obtained and used
as evidence against XXX, which he considers as fruit of the Q: Differentiate prior restraint and subsequent punishment.
poisonous tree, were not obtained through the efforts of the
police officers or any agent of the State. Rather, these were A: Prior restraint refers to official governmental restrictions on
obtained by a private individual. Indeed, the rule governing the the press or other forms of expression in advance of actual
publication or dissemination. On the other hand, subsequent
admissibility of an evidence under Article III of the Constitution
punishment is the imposition of liability to the individual
must affect only those pieces of evidence obtained by the State
through its agents. It is these individuals who can flex government exercising his freedom. It may be in any form, such as penal,
muscles and use government resources for a possible abuse. civil or administrative penalty.'
However, where private individuals are involved, for which their Q: The KKK Television Network (KKK-TV) aired the
relationship is governed by the New Civil Code, the admissibility of documentary, "Case Law: How the Supreme Court Decides,"
an evidence cannot be determined by the provisions of the Bill without obtaining the necessary permit required by P.D.
of Rights. 1986. Consequently, the Movie and Television Review and
Moreover, the act of AAA cannot be said to have violated XXX's Classification Board (MTRCB) suspended the airing of
KKK-TV programs. MTRCB declared that under P.D. 1986,
right to privacy. In ascertaining whether there is a violation of
the right to privacy, courts use the "reasonable expectation of
privacy" test. This test determines whether a person has a
I it has the power of prior review over all television programs,
except "newsreels" and programs "by the Government", and
the subject documentary does not fall under either of these
reasonable expectation of privacy and whether the expectation
has been violated. Here, XXX's expectation of privacy emanates two classes. The suspension order was ostensibly based on
from the fact that his Facebook Messenger account is password Memorandum Circular No. 98-17 which grants MTRCB the
protected, such that no one can access the same except himself. authority to issue such an order.
r
Petitioner never asserted that his Facebook Messenger account KKK-TV filed a certiorari petition in court, raising that the
was hacked or the photos were taken from his account through act of MTRCB constitutes "prior restraint" and violates the
unauthorized means. Rather, the photos were obtained from his
account because AAA, to whom he gave his password, had
access to it. Considering that he voluntarily gave his password to
AAA, he, in effect, has authorized AAA to access the same. He
did not even take steps to exclude AAA from gaining access to 697 Cadajas v. People, G.R. No. 247348, 16 November 2021.
698 Chavez v. Gonzales, G.R. No. 168338, 15 February 2008.
 286 COMPENDIOUS BAR REVIEWER BILL OF•RIGHTS 287
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constitutionally guaranteed freedom of expression. Rule on Q: Differentiate the doctrine of vagueness and the
KKK-TV's contention.'" overbreadth doctrine.
A: The contention of KKK-TV is not tenable. The prior A: Both doctrines are used to mount a facial challenge. A
restraint is a valid exercise of police power. Television is a statute or act suffers from defect of vagueness when it lacks
medium which reaches even the eyes and ears of children.' comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ as to its application. It
Alternative Answer: The memo circular is unconstitutional. The
is repugnant to the Constitution in two respects: (1) it violates
act of MTRCB constitutes prior restraint and violates freedom of
due process for failure to accord persons, especially the parties
expression. Any system of prior restraint has against it a heavy targeted by it, fair notice of the conduct to avoid it; and (2) it
presumption against its validity. Prior restraint is an abridgment leaves law enforcers unbridled discretion in carrying out its
of the freedom of expression. There is no showing that the airing provisions and becomes an arbitrary flexing of government muscle.
of the programs would constitute a clear and present danger.701
The overbreadth doctrine, meanwhile, decrees that a governmental
2. Content-Based and Content-Neutral Regulations purpose to control or prevent activities constitutionally subject to
state regulations may not be achieved by means which sweep
Q: Differentiate content-neutral regulation and content- unnecessarily broadly and thereby invade the area of protected
based restraint. freedoms. As distinguished from the vagueness doctrine, the
A: Content-neutral regulation pertains to those merely concerned overbreadth doctrine assumes that individuals will understand
with the incidents of the speech, or one that merely controls the what a statute prohibits and will accordingly refrain from that
time, place or manner, and under well-defined standards. On the behavior, even though some of it is protected.704
other hand, content-based restraint or censorship pertains to the
restriction based on the subject matter of the utterance or speech.702 Q: Can a litigant mount a facial challenge against a criminal
statute on either vagueness or overbreadth grounds?
3. Facial Challenges and Overbreadth Doctrine A: As a general rule, no. It is allowed only in penal statutes
Q: What is facial challenge? involving free speech. Generally, the vagueness and overbreadth
doctrines, as grounds for a facial challenge, are not applicable to
A: A facial challenge is allowed to be made to a vague statute penal laws. The allowance of a facial challenge in free speech
and to one which is overbroad because of possible "chilling cases ONLY is justified by the aim to avert the "chilling effect"
effect" upon protected speech.' on protected speech, the exercise of which should not at all times
be abridged."

699 BAR 2009.

700 lglesia ni Cristo v. Court ofAppeals, G.R. No. 119673, 26 July 1996.
701 Yew York Times v. United States, 403 U.S. 713, 30 June 1971. 7" Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. No.
702 Chavez v. Gonzales, G.R. No. 168338, 15 February 2008. 178552, 05 October 2010.
705
703 Romualdez v. Sandiganbayan, G.R. No. 152259, 29 July 2004. Id.
288 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 289
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4. Tests for Valid Government Interference companies now challenge Section 92 on the ground that this
violates their right to equal protection of the laws considering
Q: What are the tests used to determine the validity of that Section 92 singles out radio and television stations to
regulation of speech? provide free air time. They contend that newspapers and
A: The following are the three tests to determine valid regulation magazines are not similarly required. Should broadcast media
of speech: be treated similarly as the print media?

1. the dangerous tendency doctrine which permits limitations A: No. In Telecommunications and Broadcasting Attorneys of
on speech once a rational connection has been established the Philippines v. COMELEC,707 the Supreme Court held that
between the speech restrained and the danger contemplated; there are important differences in the characteristics of the two
media which justify their differential treatment for free speech
2. the balancing of interest tests, used as a standard when purposes. Because of the physical limitations of the broadcast
courts need to balance conflicting social values and spectrum, the government must, of necessity, allocate broadcast
individual interests, and requires a conscious and detailed frequencies to those wishing to use them. There is no similar
consideration of the interplay of interests observable in a justification for government allocation and regulation of the print media.
given situation of type of situation; and
In the allocation of limited resources, relevant conditions may
3. the clear and present danger rule which rests on the validly be imposed on the grantees or licensees. The reason for
premise that speech may be restrained because there is this is that the government spends public funds for the allocation
substantial danger that the speech will likely lead to an and regulation of the broadcast industry, which it does not do in
evil the government has a right to prevent. This rule ■ the case of the print media. To require the radio and television
requires that the evil consequences sought to be prevented broadcast industry to provide free air time for the COMELEC
must be substantive, "extremely serious and the degree Time is a fair exchange for what the industry gets.
of imminence extremely high.706
From another point of view, because of the unique and pervasive
State Regulation of Different Types of Mass Media influence of the broadcast media, necessarily, the freedom of
television and radio broadcasting is somewhat lesser in scope
Q: The Omnibus Election Code prohibits mass media from than the freedom accorded to newspaper and print media. The
selling or donating print space and air time to the candidates broadcast media have also established a uniquely pervasive
and requires the COMELEC instead to procure print space presence in the lives of all Filipinos. Newspapers and current
and air time for allocation to the candidates. Section 90 of the books are found only in metropolitan areas and in the poblaciones of
same law requires the COMELEC to procure print space municipalities accessible to fast and regular transportation. On
which should be paid for, as previously held by the Supreme the other hand, the transistor radio is found everywhere. The
Court in Philippine Press Institute v. COMELEC (1995). television set is also becoming universal. Their message may be
Meanwhile, Section 92 of the same law states that air time simultaneously received by a national or regional audience of
shall be procured by the COMELEC free of charge. Broadcasting listeners including the indifferent or unwilling who happen to be

706 Chavez v. Gonzales, G.R. No. 168338, 15 February 2008. 707 G.R. No. 132922, 21 April 1998.
290 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 291
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within reach of a blaring radio or television set. The materials their very utterance inflict injury or tend to incite an immediate
broadcast over the airwaves reaches every person of every age, breach of peace and expression endangering national security.711
persons of varying susceptibilities to persuasion, persons of
different I.Q.s and mental capabilities, persons whose reactions 5. Doctrine of Privileged Communication (Act No. 3815,
to inflammatory or offensive speech would be difficult to Art. 354)
monitor or predict. The impact of the vibrant speech is forceful
and immediate. Q: Differentiate absolutely privileged communication from
qualifiedly privileged communication.
The broadcasting companies' assertion therefore that Section 92
denies them the equal protection of the law has no basis. A: A privileged communication may be classified as either
absolutely privileged or qualifiedly privileged. The absolutely
Commercial Speech privileged communications are not actionable even if the same
was made with malice, such as the statements made by members
Q: What is "commercial speech"? Is it entitled to constitutional of Congress in the discharge of their duties for any speech or
protection? What must be shown in order for government to debate during their session or in any committee thereof, official
curtail "commercial speech"? Explain. communications made by public officers in the performance of
their duties, allegations or statements made by the parties or their
A: Commercial speech is communication which involves only
counsel in their pleadings or during the hearing, as well as the
the commercial interests of the speaker and the audience such as
answers of the witnesses to questions propounded to them.
advertisements.708 Commercial speech is entitled to constitutional
protection.709 Commercial speech may be required to be submitted Meanwhile, the qualifiedly privileged communications are those
to a government agency for review to protect public interest by which contain defamatory imputations but which are not
preventing false or deceptive claims.71° actionable unless found to have been made without good
intention or justifiable motive, and to which the exceptions found
Unprotected Speech under Article 354 of the Revised Penal Code belong, namely,
"private communications" and "fair and true report without any
Q: What are the types of speech that are not protected by
comments or remarks." The doctrine of fair comment is also
the Constitution?
included in this category.
A: Unprotected speech or low-value expression refers to libelous
statements, obscenity or pornography, false or misleading Q: Explain the doctrine of fair comment.
advertisement, insulting or "fighting words", i.e., those which by A: The doctrine of fair comment 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
708 Black's Law Dictionary, 1529 (9th ed.). against a public person in his public capacity, it is not necessarily
709 Ayer Productions Pty., Ltd v. Capulong, G.R. Nos. 82380, 82398, 29 April 1988.
710 Pharmaceutical and Health Care Association v. Duque III, G.R. No. 173034, 09
October 2007. 71 1 Soriano v. Languardia, G.R. No. 164785, 29 April 2003.
 292 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 293
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actionable. In order that such discreditable imputation to a public "fair and true report without any comments or remarks" belong.
official may be actionable, it must either be a false allegation of Indubitably, the defamatory words imputed to Atty. Alvarez
fact or a comment based on a false supposition. If the comment cannot be considered as "private communication" made by one
is an expression of opinion, based on established facts, then it is person to another in the performance of any legal, moral or
immaterial that the opinion happens to be mistaken, as long as it social duty. Neither is it a fair and true report without any
might reasonably be inferred from the facts.72 comments or remarks. Moreover, the defamatory words imputed
to Atty. Alvarez cannot be said to be fair commentaries on
Q: In 1990, Col. Rudy Ramirez, a Philippine Military matters of public interest. To be sure, informing the public as to
Academy graduate and former Presidential Security Guard the rebellion of Col. Ramirez is a matter of public interest.
led a rebellion in Mindanao. Atty. Alvarez was suspected to However, calling Atty. Alvarez as a veritable mental asylum
be one of Col. Ramirez' supporters because of his involvement patient, a madman and a lunatic is not in furtherance of the
with the Independent Mindanao Movement which espoused public interest. The defamatory words are irrelevant to the
the view of an independent Mindanao. On October 1990, a alleged participation of Atty. Alvarez in the rebellion staged by
series of articles were written by Locsin wherein some words Col. Ramirez. Thus, the subject articles could not be considered
were imputed to Atty. Alvarez such as a veritable mental
asylum patient, a madman and a lunatic. Atty. Alvarez
claimed hat the articles were designed to malign, embarrass, F. Freedom of Religion (1987 CONST., Art. III, Sec. 5)
humiliate and ridicule him.
1. Non-Establishment and Free Exercise Clauses
Locsin argues that that the articles were made in good faith,
for justifiable reasons and as part of his moral commitment • Q: Distinguish fully between the "free exercise of religion
to defend the government from threats of rebellion and clause" and the "non-establishment of religion clause".7H
insurrection and to defeat any attempt to destabilize the
government. He also claimed that the articles were written to A: The freedom of exercise of religion entails the right to
emphasize his strong opposition to Atty. Alvarez' political fr believe, which is absolute, and the right to act on one's belief,
beliefs to remove Mindanao from the government. Thus, the which is subject to regulation. As a rule, the freedom of exercise
articles are covered by qualifiedly privileged communication. of religion can be restricted only if there is a clear and present
Rule on Locsin's contention. danger of a substantive evil which the state has the right to prevent.m

A: Locsin's contention is without merit. The subject articles are The non-establishment clause implements the principle of separation
not covered by the doctrine of qualifiedly privileged communication. of church and state. The state cannot set up a church. Pass laws
The qualifiedly privileged communications are those which that aid one religion, and all religions, prefer one religion over
contain defamatory imputations but which are not actionable another force or influence a person to go to or remain away from
unless found to have been made without good intention or
justifiable motive, and to which "private communications" and

7" Id.
712Nova Communications, Inc, et. al. v. Atty. Canoy et. al., G.R. No. 193276, 26 7" BAR 2012.
June 2019. 715 Iglesia Ni Cristo vs. Court of Appeals, G.R. No. 119673, 26 July 1996.
 294 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 295
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church against his will, of force him to profess a belief or Amelia, on the other hand, claims that she and her partner
disbelief in any religion.71' are members of a religious sect that allows members of the
congregation who have been abandoned by their respective
Q: To fulfill a campaign promise to the poor folk in a far- spouses to enter marital relations under a Declaration of
flung area in Mindanao, the President requested his friend, pleading Faithfulness." Having made such Declaration, she
Pastor Roy, to devote his ministry to them. The President argues that she cannot be charged with committing immoral
would pay Pastor Roy a monthly stipend of P50,000.00 from conduct for she is entitled to free exercise of religion under
his discretionary fund, and would also erect a modest house the Constitution.' 8
of worship in the locality in an area of the latter's choice.
Does the President thereby violate any provisions of the a) Is Amelia administratively liable? State your reasons
Constitution? Explain your answer.717 briefly.

A: The President violated Sec. 29 (2), Article VI of the A: Amelia is not administratively liable. There is no compelling
Constitution. Public money can be given to Pastor Roy only state interest that justifies inhibiting the free exercise of religious
when he is assigned to the armed forces, a penal institution, or beliefs. The means used by the government to achieve its
government orphanage or leprosarium. No public money can be legitimate objective is not the least intrusive means.79
given for the benefit of the church for the construction of a house
b) Briefly explain the concept of "benevolent neutrality."
of worship.
A: Benevolent neutrality means that with respect to governmental
Alternative Answer: The President violated Sec. 5 of Article III I.
actions, accommodation of religion may be permitted to allow
of the Constitution, also known as the non-establishment clause,
individuals and groups to exercise their religion without hindrance.
which states that no law shall be made respecting an establishment of
What is sought is not a declaration of unconstitutionality of the
religion, or prohibiting the free exercise thereof, and that the free
law but an exemption from its application.72'
exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. Q: What is a conscientious objector?
Such payment of a monthly stipend and the erection of the house
is a preference which falls under this prohibition. A: This refers to a practicing skilled health professional who
refuses to provide legal and medically safe reproductive health
Benevolent Neutrality and Conscientious Objector care within the scope of his or her professional competence, on
the grounds that doing so is against his or her ethical or religious
Q: Fernando filed an administrative complaint against his convictions."'
co-teacher, Amelia, claiming that the latter is living with a
married man who is not her husband. Fernando charged
Amelia with committing "disgraceful and immoral conduct"
in violation of the Revised Administrative Code and, thus,
should not be allowed to remain employed in the government.
718 BAR 2016.
719 Estrada v. Escrnor, A.M. No. P-02-1651, 22 June 2006.
716 Everson vs. Board of Education, 330 U.S. 1, 09 February 1947. 720 Id.
717 BAR 2017. 721 DOH Administrative Order No. 2015-0027.
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2. Tests for Valid Government Interference to what the group's leader, Maskeraid was actually doing.
DT eventually came up with the conclusion that Maskeraid
Clear and Present Danger
was a phony who is just fooling the simpleminded people to
Q: Section 28, Title VI, Chapter 9, of the Administrative part with their money in exchange for the promise of eternal
happiness in some far-away heaven. This was published in a
Code of 1987 requires all educational institutions to observe
a simple and dignified flag ceremony, including the playing newspaper which caused much agitation among the followers
or singing of the Philippine National Anthem, pursuant to of Maskeraid. Some threatened violence against DT, while
rules to be promulgated by the Secretary of Education some others already started destroying properties while
Culture and Sports. The refusal of a teacher, student or pupil hurting those selling the newspaper. The local authorities,
to attend or participate in the flag ceremony is a ground for afraid of the public disorder that such followers might do,
dismissal after due investigation. The Secretary of Education, decided to ban the distribution of the newspaper containing
Culture and Sports issued a memorandum implementing the article. DT went to court complaining about the prohibition
said provision of law. As ordered, the flag ceremony would placed on the dissemination of his article. He claims that the
be held on Mondays at 7:30 A.M., during class days. A group act of the authorities partakes of the nature of heckler's veto,
of teachers, students and pupils requested the Secretary that thus a violation of the guaranty of press freedom. On the
they be exempted from attending the flag ceremony on the otherhand, the authorities counter that the act was necessary
ground that attendance thereto was against their religious to protect the public order and the greater interest of the
community. If you were the judge, how would you resolve
belief. The Secretary denied the request. The teachers, students
and pupils concerned went to Court to have the memorandum the issue?724
circular declared null and void. A: If I were the judge, I would rule that the distribution of the
newspaper cannot be banned. Freedom of the news should be
Decide the case."2
allowed although it induces a condition of unrest and stirs people
A: The teachers and the students should be exempted from the to anger. Freedom of the press includes freedom of circulation.'
flag ceremony. As held in Ebralinag vs. Division Superintendent
When governmental action that restricts freedom of the press is
of Schools of Cebu,723 to compel them to participate in the flag
based on content, it is given the strictest scrutiny and the
ceremony will violate their freedom of religion. Freedom of
government must show that there is a clear and present danger of
religion cannot be impaired except upon the showing of a clear
the substantive evil which the government has the right to
and present danger of a substantive evil which the State has a
prevent. The threats of violence and even the destruction of
right to prevent. The refusal of the teachers and the students to
properties while hurting those selling the newspaper do not
participate in the flag ceremony does not pose a clear and present danger.
constitute a clear and present danger as to warrant curtailment of
726
Q: Allmighty Apostles is a relatively new religious group the right of DT to distribute the newspaper.
and movement with fast-growing membership. One time,
DT, an investigative reporter, made a research and study as

724 BAR 2014.

722 BAR 2009. 72' Chavez v. Gonzales, G.R. No. 168338, 15 February 2008.
723 G.R. No. 95770, 01 March 1993. 726 Id.
 298 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 299
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Alternative Answer: The action of the government is justified. In 1962, the Salvation Army registered with the Social Security
The fact that some people had already started destroying properties System (SSS) and was assigned a Social Security Number. In
while hurting those selling the newspaper can be validly considered its registration, it listed its officers as "employees." In 2005,
by the government as a clear and present danger, which will it filed before the SSS a request for the conversion of the
justify its banning of the further distribution of the newspaper membership status of its officers from "employees" to
containing the article. The test for limitations on freedom of "voluntary or self-employed."
expression continues to be the clear and present danger rule-that
words are used in such circumstances and are of such a nature as The SSS denied the request for lack of legal and factual basis.
to create a clear and present danger that they will bring about the The Salvation Army argues that it could not be subjected to
substantive evils that the lawmaker has a right to prevent.72' the provisions of the SSS Law. Otherwise, the non-establishment
and free exercise clauses under the Constitution would be
Compelling State Interest violated. Rule on the Salvation Army's contention.

Q: What is the Compelling State Interest Test? A: The contention is unmeritorious.

A: Under the Compelling State Interest Test, only a compelling First, the principle of separation of church and state applies only
interest of the state can prevail over the fundamental right to to ecclesiastical affairs. An ecclesiastical affair is one that concerns
religious liberty. The test requires the state to carry a heavy doctrine, creed, or form of worship of the church, or the adoption
burden, a compelling one, for to do otherwise would allow the and enforcement within a religious association of needful laws
state to batter religion, especially the less powerful ones until and regulations for the government of the membership, and the
they are destroyed. In determining which shall prevail between power of excluding from such associations those deemed unworthy
the state's interest and religious liberty, reasonableness shall be of membership." Based on this definition, an ecclesiastical affair
the guide.728 involves the relationship between the church and its members
and relate to matters of faith, religious doctrines, worship and
3. Separation of Church and State (1987 CONST., Art. II, governance of the congregation. To be concrete, examples of this
Sec. 6) so-called ecclesiastical affairs to which the State cannot meddle
are proceedings for excommunication, ordinations of religious
Q: The Salvation Army is an international evangelical ministers, administration of sacraments and other activities with
Christian Church and social welfare organization. It employs attached religious significance. Based on the foregoing, just
the use of military terminology in its organization, operations, because a case involves the relationship between the Church and
and ministries. The Salvation Army is incorporated under its religious ministers does not automatically bring it within the
the laws of the Philippines as a non-stock, non-profit religious ambit of a purely religious affair. An employer-employee
organization with headquarters at 1843 Leon Guinto, Sr. relationship may exist between a religious organization and its
Street, Malate, Manila. ministers. It is the existence of this relationship that determines
the status and triggers mandatory coverage under the SSS law.
Second, the application of the provisions of the SSS to the
727
Salvation Army, a religious institution, does not offend the non-
Id. establishment clause of the Constitution. "Establishment" requires a
728
Estrada v. Escritor, A.M. No. P-02-1651, 22 June 2006.
 300 COMPENDIOUS BAR REVIEWER BILL OF,RIGHTS 301
ON POLITICAL LAW

positive action on the part of the State involving the use of that he will remain to be a resident therein until final
government resources with the primary intention of setting up or judgment is rendered or in case he transfers residence, it
adhering to a particular religion. Simply, in "establishment" there must be with prior notice to the court." Further, he was
are two factors that concur: one, there must be a government ordered to surrender his passport to the Division Clerk of
action, the primary consideration for which must be religion; and Court for safekeeping until the court orders its return.'"
second, that public money or property is employed primarily for
the furtherance of a particular church. In other words, the aid, a) Mr. Violet challenges the conditions imposed by the Court
excessive entanglement, or preference exhibited by the government of Appeals as violative of his liberty of abode and right to
must be on account of religion or directed towards religious travel. Decide with reasons.
matters and realized with the use of government resources.
A: The right to change abode and the right to travel are not
In this case, the Salvation Army is dealt with not as a religious absolute. The liberty of changing abode may be impaired upon
institution but as an employer of its ministers. It is in this order of the court. Here, the order of the Court of Appeals was
capacity that the its obligation to register and extend the benefits lawful because the purpose of which is to ensure that the accused
under the SSS law in favor of its ministers arose. The funds will be available whenever his presence is required. He is not
involved are not owned by the government but merely held in being prevented from changing his abode but is merely being
trust for the members who are the beneficiaries thereof. required to inform the Court of Appeals if he does.731
Irrespective of whether the funds are characterized as public in b) Are "liberty of abode" and "right to travel" absolute
nature, there is no "establishment" to speak of as the social rights? Explain. What is/are the respective exception/s to
security benefit is given to ministers not on account of their each right, if any?
religion but as employees of the Salvation Army; the religious
character of the nature of their employment is merely incidental A: The liberty of abode and the right to travel are not absolute.
to the extension of the coverage in the SSS Restrictions on the liberty of abode and of changing it can be
imposed within the limits prescribed by law upon lawful order of
G. Liberty of Abode and Right to Travel; Limitations (1987 the court. Meanwhile, the right to travel may be impaired in the
CONST., Art. III, Sec. 6) interest of national security, public safety, or public health as
may be provided by law.732 In addition, the court has the inherent
Scope and Limitations power to restrict the right of an accused who has a pending criminal
733
Q: Mr. Violet was convicted by the Regional Trial Court of case to travel abroad to maintain its jurisdiction over him.
Estafa. On appeal, he filed with the Court of Appeals a
Motion to Fix Bail for Provisional Liberty Pending Appeal.
The Court of Appeals granted the motion and set a bail
amount in the sum of P5 Million, subject to the conditions
that he secure "a certification/guaranty from the Mayor of
the place of his residence that he is a resident of the area and
739 BAR 2012.
731 Yap v. Court of Appeals,G.R. No. 141529, 06 June 2001.
732
729
C0NST., Art. III, Sec. 6.
The Salvation Army v. Social Security System, G.R. No. 230095, 15 September 2021. 733 Santiago v. Vasquez, G.R. Nos. 99289-90, 27 January 1993.
 302 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 303
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Watch-List and Hold Departure Orders Q: What is a Precautionary Hold Departure Order?

Q: DOJ Circular No. 41, Series of 2010 gives the Secretary A: A Precautionary Hold Departure Order ("PHDO") is a
of Justice the power to issue Hold Departure Orders (HDO), written order issued by the court commanding the Bureau of
Watchlist Orders (WLO) and Allow Departure Orders (ADO). Immigration to prevent a person suspected of a crime to depart
The constitutionality of the said circular is now challenged on from the Philippines.735
the ground that the issuance unnecessarily places a restraint on
the right to travel even in the absence of the grounds Q: What are the grounds for the issuance of a Precautionary

provided in the Constitution. Rule on the contention. Hold Departure Order?

A: The contention is meritorious. In Genuino v. De Lima,734 the A: A Precautionary Hold Departure Order can be issued only
Supreme Court held that the Department of Justice has no upon determination by the judge, to whom the application was
authority to issue DOJ Circular No. 41 which effectively restricts filed, that probable cause exists and there is a high probability
the right to travel through the issuance of Watchlist Orders that the person against whom the PHDO is issued will depart
(WLOs) and Hold Departure Orders (HDOs). Under the from the Philippines to evade arrest and prosecution of the crime
Constitution, there are only three considerations that may permit against him or her. The judge shall determine the existence of
a restriction on the right to travel: national security, public probable cause by personally examining under oath or affirmation,
safety, or public health. As a further requirement, there must be through written searching questions and answers, the applicant
an explicit provision of statutory law or the Rules of Court and the witnesses he/she may produce on facts personally known
736
providing for the impairment. It is clear from the foregoing that to them and attaching to the record their sworn statements.
the liberty of abode may only be impaired by a lawful order of
H. Right to Information; Limitations (1987 CONST., Art. II,
the court and, on the one hand, the right to travel may only be
Sec. 28: Art. HI, Sec. 7; Art. XVI, Sec. 10)
impaired by a law that concerns national security, public safety
or public health, Therefore, when the exigencies of times call for Scope and Limitations
a limitation on the right to travel, the Congress must respond to
the need by explicitly providing for the restriction in a law. This Q: When are official records, documents, and paper, pertaining
is in deference to the primacy of the right to travel, being a to official acts, transactions, or decisions accessible to the citizens?
constitutionally-protected right and not simply a statutory right.
It can only be curtailed by a legislative enactment. DOJ Circular A: Access to official records, and to documents and papers
No. 41 is not a law. It is not a legislative enactment which pertaining to official acts, transactions, or decisions, as well as to
underwent the scrutiny and concurrence of lawmakers, and submitted government research data used as basis for policy development,
to the President for approval. It is a mere administrative issuance. shall be afforded the citizen, subject to such limitations as may
be provided by law.737

73' A.M. No. 18-07-05-SC, Sec. 1.

736 A.M. No. 18-07-05-SC, Sec. 4.
734 G.R. No. 197930, 17 April 2018. 737 CONST., Art. III, Sec. 7.
 304 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 305
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Q: What is the State policy regarding the emergency of the offers and counter-offers between the parties could jeopardize
communication structures and balanced flow of information? the ongoing negotiations with another country. KMM filed
A: The State shall provide the policy environment for the full suit to compel disclosure of the negotiation details, and be
granted access to the records of the meetings, invoking the
development of Filipino capability and the emergence of
constitutional right of the people to information on matters
communication structures suitable to the needs and aspirations of
the nation and the balanced flow of information into, out of, and of public concern. (a) Will the suit prosper? (b) Will your
answer be the same if the information sought by KMM
across the country, in accordance with a policy that respects the
pertains to contract entered into by the Government in its
freedom of speech and of the press.738
proprietary or commercial capacity? Why or why not?741
Q: What is covered by the right to information?
A: (a) The suit filed by KMM will not prosper. Diplomatic
A: The people's right to information is limited to "matters of negotiations are privileged in order to encourage a frank
public concern," and is further "subject to such limitations as exchange of exploratory ideas between the parties by shielding
742
may be provided by law." Similarly, the State's policy of full the negotiations from public view.
disclosure is limited to "transactions involving public interest,"
(b) KKM is entitled to have access to information pertaining to
and is "subject to reasonable conditions prescribed by law."739
government contracts entered into by the Government in the
Q: What are the requisites to properly invoke the right to exercise of its proprietary commercial capacity. The right to
public information? information under the Constitution does not exclude contracts of
public interest and are not privileged.743
A: To invoke the right to public information, these twin-
requisites must be present: (i) the information sought must be a I. Right to Association (1987 CONST., Art. III, Sec. 8; Art.
4' XIII, Sec. 3; Art. IX-B, Sec. 2(5))
matter of public interest and concern; and (ii) the information
sought must not be among those excluded by law.'"
Basic Concepts
Q: The Philippine Government is negotiating a new security
treaty with the United States which could involve engagement
in joint military operations of the two countries' armed forces.
A loose organization of Filipinos, the Kabataan at Matatandang
I Q: What is the State policy on the right of the people to form
unions, associations, or societies?
A: The right of the people, including those employed in the public
Makabansa (KMM) wrote the Department of Foreign Affairs and private sectors, to form unions, associations, or societies for
(DFA) and the Department of National Defense (DND) purposes not contrary to law shall not be abridged.'
demanding disclosure of the details of the negotiations, as
well as copies of the minutes of the meetings. The DFA and
the DND refused, contending that premature disclosure of

741 BAR 2009.

738 CONST., Art. XVI, Sec. 10. 742 Akbayan Citizens Action Party v. Aquino, G.R. No. 170516, 16 July 2008.
739 l'almonte v. Belnionte, G.R. No. 74930, 13 February 1989. 743 CONST., Art. III, Sec. 7.
74° Id. 734 CONST., Art. Ill, Sec. 8.
 306 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 307
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Q: What is the State policy regarding the right of all workers (e) None of the above can legally be done.746
to self-organization, collective bargaining and negotiations, (d)747
and peaceful concerted activities? A:

A: The State shall guarantee the rights of all workers to self- Non-Impairment of Contracts (1987 CONST., Art. III,
organization, collective bargaining and negotiations, and peaceful Sec. 10)
concerted activities, including the right to strike in accordance
with law.745 Scope and Limitations

Q: What is the non-impairment of contracts clause?

Q: Can the government employees be denied of their right to
self-organization? A: It refers to the principle that contracts should not be tampered
A: No. Pursuant to Article IX, Section 2(B) of the Constitution, with by subsequent laws that would change or modify the rights
the right to self-organization shall not be denied to government and obligations of the parties therein.748
employees. Q: What is the protection guaranteed by the non-
impairment clause?
Scope and Limitations
A: The non-impairment clause renders null and void a law which
Q: Offended by the President's remarks that the Bureau of changes the terms of a legal contract between parties, either in
Customs is a pit of misfits and the corrupt, the Bureau of the time or mode of performance, or imposes new conditions, or
Customs Employees Association composed of 3,000 workers dispenses with those expressed, or authorized for the satisfaction
seeks your legal advice on how best to protest what it views something different from that provided in its terms.'
to be the President's baseless remarks. 4.
Q: When is a change in the existing law considered violative
A prudent legal advice is that
4. of non-impairment of contracts?
(a) employees can go on mass leave of absence for one week
A: To fall within the prohibition, the change must not only impair
(b) employees can march and rally at Mendiola every Monday the obligations of the existing contract, but the impairment must
be substantial. Moreover, to constitute impairment, the law must
(c) employees can barricade the gates of the Port of affect a change in the rights of the parties with reference to each
Manila at South Harbor and call for the resignation ■ 75°
other and not with respect to non-parties.
of the incumbent Commissioner of Customs
(d) employees can wear black arm bands and pins with
the word "UNFAIR" inscribed
746 BAR 2013.
717 Arizala v. Court of Appeals, G.R. No. 43633-34, 14 September 1990.
748 Goldenway Merchandising Corp. v. Equitable PCI Bank, G.R. No. 195540, 13
March 2013.
749 Lepanto Consolidated Mining v. WMC Resources Intl. Ply, Ltd, G.R. No.
162331, 20 November 2006.
745 CONST., Art. XIII, Sec. 3. 75° PHILRECA v. Secretary of DILG, G.R. No. 143076, 10 June 2003.
 308 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 309
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Q: What are exceptions to the non-impairment clause? manner."' It also includes the practice of issuing an "invitation"
ll to a person who is investigated in connection with an offense he
A: The exceptions to the non-impairment clause are the valid
exercise of the essential attributes of sovereign power of the is suspected to have committed, without prejudice to the liability
State, i.e., police power, eminent domain, and taxation.751 of the "inviting" officer for any violation of law."'

Q: When does the rules on custodial investigation commence

K. Free Access to Courts and Adequate Legal Assistance
(1987 CONST., Art. 111, Sec. 11; R.A. No. 9999) to operate?
A: The rules on custodial investigation begin to operate as soon
Q: What is the right to free access to courts?
as the investigation ceases to be a general inquiry into an unsolved
A: Free access to the courts and quasi-judicial bodies and crime and begins to focus a particular suspect. It is when the
adequate legal assistance shall not be denied to any person by suspect is taken into custody, and the police carries out a process
reason of poverty."' of interrogations that tends itself to eliciting incriminating statements
that the rule begins to operate.76
Q: What is the State policy regarding the free legal assistance
to the poor under Republic Act No. 9999? Q: What are the rights of a person under custodial
investigation under the Constitution?
A: The State shall guarantee free legal assistance to the poor
and ensure that every person who cannot afford the services of a A: The following are the rights of a person under custodial
counsel is provided with a competent and independent counsel investigation:
preferably of his/her own choice, if upon determination it 1. Any person under investigation for the commission of an
appears that the party cannot afford the services of a counsel, and offense shall have the right to be informed of his right to
that services of a counsel are necessary to secure the ends of remain silent and to have competent and independent counsel
justice and protect of the party."' preferably of his own choice. If the person cannot afford
the services of counsel, he must be provided with one.
L. Rights under Custodial Investigation (1987 CONST., Art.
These rights cannot be waived except in writing and in
III, Sec. 12; R.A. No. 7438)
the presence of counsel.
Q: Define custodial investigation. 2. No torture, force, violence, threat, intimidation, or any other
A: Custodial investigation involves any questioning initiated by means which vitiate the free will shall be used against
law enforcement authorities after a person is taken into custody him. Secret detention places, solitary, incommunicado,
or otherwise deprived of his freedom of action in any significant or other similar forms of detention are prohibited.
Any confession or admission obtained in violation of the above
rights shall be inadmissible in evidence against the person under

25 Ortigas & Co. Ltd. v. FEATI Bank and Trust Co., G.R. No. L-24670, 14 December
1979. 754 People v. Tan y Verzo, G.R. No. 117321, 11 February 1998.
752
CONST., Art. III, Sec. 11. 255 Republic Act No. 7438, Section 2, par. 2.
753 Free Legal Assistance Act of 2010, Republic Act No. 9999, 27 July 2009. 7'6
People v. Tan y Verzo, G.R. No. 117321, 11 February 1998.
 310 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 311
ON POLITICAL LAW

custodial investigation. Art. III, Section 12 of the Constitution a) Brown, afraid of a "set up" against him, demanded that
states that the law shall provide for penal and civil sanctions for he be allowed to secure his lawyer and for him to be
violations thereof, as well as compensation to the rehabilitation present during the police line-up. Is Brown entitled to
of victims of torture or similar practices, and their families. counsel? Explain.

Q: The contents of the vault of ABC Company consisting of A: Brown is not entitled to counsel during the police line-up.
76o
He
cash and documents were stolen. Paulyn, the treasurer of was not yet being asked to answer for a criminal offense.
ABC, was invited by the Makati City Police Department to 0
shed light on the amount of cash stolen and the details of the b) Would the answer in (a) be the same if Brown was
specifically invited by White because an eyewitness to the
missing documents. Paulyn obliged and volunteered the
crime identified him as the perpetrator? Explain.
information asked. Later, Paulyn was charged with qualified
theft together with suspects. Paulyn claims her rights under I. A: Yes. In that case, Brown should be entitled to the assistance
the Constitution and pertinent laws were blatantly violated. of a lawyer. He was already considered as a suspect and was
The police explained that they were just gathering evidence therefore entitled to the rights under custodial investigation.761
when Paulyn was invited for a conference and she was not a
suspect at that time. Rule on her defense.757 c) Briefly enumerate the so-called "Miranda Rights".

A: No. The defense of Paulyn is not valid. When she was invited A: The Miranda warning means that a person in custody who
for questioning by the Makati City Police Department and she will be interrogated must be informed of the following: a) he has
volunteered information, she was not yet a suspect. The constitutional right to remain silent; b) anything he says can be used as
rights of a person under investigation for the commission of an evidence against him; c) he has the right to have a counsel during
offense begins to operate when the investigation ceases to be a the investigation; and d) he must be informed that if he is an
762
general inquiry upon an unsolved crime and begins to be aimed indigent, a lawyer will be appointed to represent him.
upon a particular suspect who has been taken into custody and
Q: The police got a report about a shooting incident during
the questions tend to elicit incriminating statements.758
a town fiesta. One person was killed. The police immediately
Q: Mr. Brown, a cigarette vendor, was invited by PO1 White went to the scene and started asking the people about what
to a nearby police station. Upon arriving at the police station, they witnessed. In due time, they were pointed to Edward
Brown was asked to stand side-by-side with five (5) other Gunman, a security guard, as the possible malefactor.
cigarette vendors in a police line-up. PO1 White informed Edward was then having refreshment in one of the eateries
them that they were looking for a certain cigarette vendor when the police approached him. They asked him if he had a
who snatched the purse of a passer-by and the line-up was to gun to which question he answered yes. Then they asked if he
allow the victim to point at the vendor who snatched her had seen anybody shot in the vicinity just a few minutes
purse. No questions were to be asked from the vendors.759 earlier and this time he said he did not know about it. After a

757 BAR 2016. 76° Gamboa v. Cruz, G.R. No. L-56291, 27 June 1988.
758 People v. Marra, G.R. No. 108494, 20 September 1994. 761 Peoplev. Legaspi, G.R. No. 117802, 27 April 2000.
762
759 BAR 2012. Miranda v. Arizona, 382 U.S. 436, 13 June 1966.
 312 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 313
ON POLITICAL LAW

few more questions, one of the policemen asked Edward if he called in the police. At the police station, the guard narrated
was the shooter. He said no, but then the policeman who to the police that he personally caught Arnold in possession
asked him told him that several witnesses pointed to him as of dried marijuana leaves. Arnold did not contest the guard's
the shooter. Whereupon Edward broke down and started statement; he steadfastly remained silent and refused to give
explaining that it was a matter of self-defense. Edward was any written statement. Later in court, the guard testified and
eventually charged with murder. During his trial, the narrated the statements he gave the police over Arnold's
statements he made to the police were introduced as evidence counsel's objections. While Arnold presented his own witnesses
against him. He objected claiming that they were inadmissible to prove that his possession and apprehension had been set-
since he was not given his Miranda rights. On the other up, he himself did not testify. The court convicted Arnold,
hand, the prosecution countered that there was no need for relying largely on his admission of the charge by silence at
such rights to be given since he was not yet arrested at the the police investigation and during trial.
time of the questioning. If you were the judge, how would
you rule on the issue? 763 From the constitutional law perspective, was the court
?764
correct in its ruling
A: I would rule in favor of Edward. The statements made are
inadmissible. It was made in violation of the constitutional rights A: The court was wrong in relying on the silence of Arnold
of Edward. Custodial investigation refers to any questioning initiated during the police investigation and during the trial. Under Article
by law enforcement officers after a person has been taken into III, Section 12 of the 1987 Constitution, he had the right to
custody. The rights are available when the person interrogated is remain silent. His silence cannot be taken as a tacit admission,
already treaded as a particular suspect and the investigation is no otherwise, his right to remain silent would be rendered nugatory.
longer a general inquiry into an unsolved crime. Considering that his right against self-incrimination protects his
right to remain silent, he cannot be penalized for exercising it.765
While in this case no complaint or criminal case has been filed
yet against Edward and he was not yet considered as an accused, 1. Requisites of a Valid Waiver
the questioning made was more than just a general inquiry into
an unsolved crime. It was already in the accusatory stage in Q: What are the requisites of a valid waiver?
which the Miranda rights must be given to the accused. A: To be valid, a waiver of the right must not only be voluntary;
it must be made knowingly and intelligently, which presupposes
Q: As he was entering a bar, Arnold who was holding an
an awareness or understanding of what is being waived.766
unlit cigarette in this right hand, was handed a match box by
someone standing near the doorway. Arnold unthinkingly Q: After X, a rape suspect, was apprised of his right to
opened the matchbox to light his cigarette and as he did so, a silence and to counsel, he told the investigators that he was
sprinkle of dried leaves fell out, which the guard noticed. The waiving his right to have his own counsel or to be provided
guard immediately frisked Arnold, grabbed the matchbox, one. He made his waiver in the presence of a retired Judge who
and sniffed its contents. After confirming that the matchbox
contained marijuana, he immediately arrested Arnold and
764 BAR 2013.
765 People v. Galvez, G.R. No. 157221, 30 March 2007.
763 BAR 2014. 766 People v. Nicandro, G.R. No. L-59378, 11 February 1986.
 314 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 315
ON POLITICAL LAW

was assigned to assist and explain to him the consequences of of Customs agents. The agents called out the names of the
such waiver. Is the waiver valid? foreigners one by one and ordered them to sign their names
on the masking tape placed on the boxes recovered from their
(a) No, the waiver was not reduced in writing.
respective bags. The contents of the boxes were thereafter
(b) Yes, the mere fact that the lawyer was a retired judge subjected to tests which confirmed that the substance was shabu.
does not cast doubt on his competence and independence.
Can the shabu found inside the boxes be admitted in evidence
(c) Yes, the waiver was made voluntarily, expressly, and against the five foreigners for the charge of illegal possession
with assistance of counsel. of drugs in violation of the Comprehensive Dangerous Drugs
Act of 2002?7"
(d) No, a retired Judge is not a competent and independent
counsel.767 A: Yes. The shabu obtained in the airport during the conduct of
ordinary customs searches is admissible in evidence for being a
A: (a)768 warrantless search."'

2. Exclusionary Rule Alternative Answer:

Q: What is the exclusionary rule with regard to custodial A: No. The boxes containing shabu are inadmissible in evidence.
investigations? The signatures of the accused on the boxes constitute as tacit
admission of the crime charged and are tantamount to an
A: Pursuant to the exclusionary rule, any confession or admission uncounseled extra-judicial confession which is not sanctioned by
obtained in violation of Article III, Sections 12 and 17 of the the Bill of Rights.7' The fact that all accused were foreign nationals
Constitution shall be inadmissible in evidence.769 does not preclude application of the exclusionary rule because
the constitutional guarantees embodied in the Bill of Rights are
Q: Five foreign nationals arrived at the Ninoy Aquino
given and extend to all persons, both aliens and citizen.7'
International Airport from Hong Kong. After retrieving their
checked-in luggage, they placed all their bags in one pushcart M. Rights of the Accused (1987 CONST., Art. III, Secs. 13-
and proceeded to Express Lane 5. They were instructed to 17, 21 and 22)
place their luggage on the examiner's table for inspection.
Criminal Due Process
The examiner found brown-colored boxes, similar in size to
powdered milk boxes, underneath the clothes inside the Q: What are the elements of due process in criminal proceedings?
foreigners' bags. The examiner discovered white crystalline
substances inside the boxes that were the inspected and A: The elements of due process in criminal proceedings are:
proceeded to bundle all of the boxes by putting masking tape
around them. He thereafter handed the boxes over to Bureau

770 BAR 2018.

767 BAR 2011. 771 Dela Cruz v. People, G.R. No. 209387, 1 1 January 2016.
768 CONST., Art. III, Sec. 12(1). 772 CONST., Art. 1II, Sec. 12(1)(3).
769 People v. Andan, G.R. No. 116437, 03 March 1997. 773 People v. Wong Chuen Ming, G.R. No. 112801-11, 12 April 1996.
 316 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 317
ON POLITICAL LAW

1. The accused has been heard in a court of competent jurisdiction. Q; When is bail a matter of discretion?
2. The accused proceeded against under the orderly processes A: The granting of bail is discretionary: (1) upon conviction by
of law. the RTC of an offense not punishable by death, reclusion
perpetua or life imprisonment; or (2) if the RTC has imposed a
3. The accused has been given notice and an opportunity to
penalty of imprisonment exceeding six years, provided none of
be heard.
the circumstances enumerated under paragraph 3 of Section 5,
4. The judgment awarded is within the authority of a Rule 114 of the Rules of Court is present, as follows:
constitutional law.74
1. That he is a recidivist, quasi-recidivist, or habitual
Bail delinquent, or has committed the crime aggravated by

Q: What is bail?
A: Bail is a security given for the release of a person in custody
of the law, furnished by him or a bondsman, to guarantee his
1 the circumstance of reiteration;
2. That he has previously escaped from legal confinement,
evaded sentence, or violated the conditions of his bail
without valid justification;
appearance before any court as required under the conditions
3. That he committed the offense while under probation,
hereinafter specified.75
parole, or conditional pardon;
Q: When is bail a matter of right? 4. That the circumstances of his case indicate the probability
A: Bail is a matter of right in: of flight if released on bail; or

1. All criminal cases within the competence of the Metropolitan 5. That there is undue risk that he may commit another
Trial Court, Municipal Trial Court, Municipal Trial Court crime during the pendency of the appeal.'"
in Cities, or Municipal Circuit Trial Court
Q: When is a hearing mandatory in granting bail?
2. Prior to conviction by the Regional Trial Court (RTC)
A: For purposes of admission to bail, the determination of
for any offense not punishable by death, reclusion
whether or not evidence of guilt is strong in criminal cases
perpetua, or life imprisonment
involving capital offenses, or offenses punishable with reclusion
3. Prior to conviction for an offense punishable by death, perpetua or life imprisonment lies within the discretion of the
reclusion perpetua, or life imprisonment when evidence trial court. Such discretion may be exercised only after hearing
of guilt is not strong.76 called to ascertain the degree of guilt of the accused for the
purpose of whether or not he should be granted provisional
liberty. It is axiomatic, therefore, that bail cannot be allowed when

774 Mejia v. Pamaran, G.R. Nos.56741-42, 15 April 1988.

775 Rules of Court, Rule 114, Sec. 1.
776 Enrile v. Sandiganbayan, G.R. No. 213847, 18 August 2015. "'
 318 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 319
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its grant is a matter of discretion on the part of the trial court of right for Jake to be released on bail. The court must first make
unless there has been a hearing with notice to the Prosecution.778 a determination of the strength of the evidence on the basis of
evidence already presented by the prosecution unless it desires to
Q: What is the quantum of proof in granting bail in present additional evidence, and the court shall give the accused the
extradition cases? opportunity to present countervailing evidence. Thus, it is erroneous
A: Being a sui generis, the quantum of proof in granting bail in for the judge to outrightly deny Jake's application for bail.780
extradition cases is clear and convincing evidence. The potential Q: The Sandiganbayan rendered a Decision convicting R
extraditee must prove by clear and convincing evidence that he is
and J of Plunder and sentenced them to suffer the penalty of
not a flight risk and will abide with all the orders and processes reclusion perpetua. R and J separately appealed their conviction
of the extradition court.'
before the Supreme Court. Pending resolution of the appeal,
Q: Jake learned that the police were looking for him in J is detained at the correctional facility. Thereafter, she filed
connection with the rape of an 18-year old girl, a neighbor. an application to post bail and alleged that J is at risk of
He went to the police station a week later and presented contracting COVID-19 inside the prison and for humanitarian
himself to the desk sergeant. Coincidentally, the rape victim grounds. Can J's application to post bail be granted pending
was in the premises executing an extrajudicial statement. the appeal of her conviction of a capital offense?
Jake, along with six (6) other suspects, were placed in a A: No. The Constitution guarantees every accused's right to bail,
police line-up and the girl pointed to him as the rapist. Jake except for those charged with a capital offense when the evidence
was arrested and locked up in a cell. Jake was charged with of guilt is strong. The Rules of Court echoes this principle.
rape in court but prior to arraignment invoked his right to
preliminary investigation. This was denied by the judge, and Indeed, before conviction, every person is entitled to bail as a
thus, trial proceeded. After the prosecution presented several matter of right unless, he or she is charged with a capital offense
witnesses, Jake through counsel, invoked the right to bail and the evidence of guilt is strong. In resolving bail applications
and filed a motion therefore, which was denied outright by of an accused charged with a capital offense, the court conducts
the Judge. Jake now files a petition for certiorari before the a summary hearing to determine the strength of the evidence of
Court of Appeals arguing that he is entitled to bail as a his or her guilt. In the affirmative, the accused cannot enjoy
matter of right, thus the Judge should not have denied his provisional liberty. The rationale for this rule, is that the accused
motion to fix bail outright. Decide. is more likely to be tempted to flee rather than await the outcome of
the proceeding with a penalty demanding a lifetime of incarceration.
A: The petition will prosper as it is improper for the judge to
outrightly deny the application for bail without prior hearing. On the other hand, bail after conviction is not absolute. It is a
Under Article III, Section 13 of the Constitution, an application matter of judicial discretion which must be exercised with grave
for bail may be denied if the evidence of guilt is strong for crime caution owing to the ascertainment of the accused's guilt.
punishable by reclusion perpetua. In this case, it is not a matter
Thus, under the Rules of Court, upon the accused's conviction by
the RTC of a non-capital offense, admission to bail is discretionary.
Enrile v. Sandiganbayan, G.R. No. 213847, 18 August 2015.
778
779Government of Hong Kong Special Administrative Region v, Olalia, G.R. No.
780 BAR 1993.
153675, 19 April 2007.
 320 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 321
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However, when the penalty imposed on the accused exceeds six his innocence be duly taken into account. The proof against him
years, and any of the bail-negating circumstances exists, the must survive the test of reason; the strongest suspicion must not
accused's application for bail must be denied or cancelled. be permitted to sway judgment.784
Nevertheless, bail should be denied to an accused who was
convicted of a capital offense.' Right to be Heard

Presumption of Innocence Q: What encompasses the right to be heard?

Q: What does the right to presumption of innocence mean? A: "To be heard" does not mean only verbal arguments in court;
one may be heard also through pleadings. Where opportunity to
A: It means that in criminal case, the accused is entitled to an be heard, either through oral arguments or pleadings, is accorded,
acquittal, unless his guilt is shown beyond reasonable doubt. there is no denial of procedural due process.'
Proof beyond reasonable doubt does not mean such a degree of
proof, excluding the possibility of error, produces absolute Right to Counsel
certainty. Moral certainty only is required or that degree of proof
which produces conviction in an unprejudiced mind.' Q: What is the right to counsel?

Q: What is the equipoise rule? A: The right to counsel of an accused is guaranteed by our
Constitution, our laws, and our Rules of Court. During custodial
A: Where the evidence of the parties is evenly balanced, the investigation, arraignment, trial, and even on appeal, the accused
constitutional presumption of innocence should tilt the scales in is given the option to be represented by a counsel of his choice.
favor of the accused.783 When the accused neglects or refuses to exercise this option during
arraignment and trial, the court shall appoint one for him.786
Q: How must the prosecution overcome the presumption of
innocence? Q: How may a person exercise his right to counsel in
criminal prosecution?
A: The prosecution must overthrow the presumption of innocence
with proof of guilt beyond reasonable doubt. To meet this A: In all criminal prosecutions, the accused shall enjoy the right
standard, there is need for the most careful scrutiny of the to be heard by himself and counsel. An accused may exercise his
testimony of the State, both oral and documentary, independently right to counsel by electing to be represented either by a court-
of whatever defense is offered by the accused. Only if the judge appointed lawyer or by one of his own choice.'87
below and the appellate tribunal could arrive at a conclusion that
the crime had been committed precisely by the person on trial
under such an exacting test should the sentence be one of
conviction. It is thus required that every circumstance favoring

784 People v. Austria, G.R. L-55109, 08 April 1991.

781 People v. Revilla, Cambe, and Napoles, G.R. No. 247611, 13 January 2021. 785 Vivo v. P,4GCOR, G.R. 187854, 14 November 2013.
782 Rules of Court, Rule 133, Sec. 2. 786 People v. Serzo, G.R. No. 118435, 20 June 1997.
783 Corpus v. People, G.R. 74259, 14 February 1991. 787 Id
322 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 323
ON POLITICAL LAW

Right to be Informed of the Nature and Cause of Accusation The two Informations against the petitioners clearly and
sufficiently stated that they were being charged for their failure
Q: What is the rationale behind the right to be informed of to perform their duties as mayor and treasurer to ensure full and
the nature and cause of accusation? timely remittance of the municipality's GSIS contributions. The
A: The rationale behind this constitutional guarantee are: (1) to indictment of the purported conspirators, as well as a statement
furnish the accused with the description of the charge against of their part in the alleged conspiracy, is not necessary to sustain
him as will enable him to make his defense; (2) to avail himself the sufficiency of the Informations.
of his conviction or acquittal for protection against a further
Right to Speedy, Impartial and Public Trial
prosecution for the same cause; and (3) to inform the court of the
facts alleged, so that it may decide whether they are sufficient in Q: When is right to speedy trial deemed violated?
law to support a conviction, if one should be had.'"
A: The right to a speedy disposition of a case is deemed
Q: Due to the failure of the Municipality of L to remit its violated only when vexatious, capricious, and oppressive delays
Government Service Insurance System (GSIS) contributions, attended the proceedings; or when unjustified postponements of
Vice Mayor D lodged a complaint for malversation of public the trial are asked for and secured; or even without cause or
funds against Mayor I, and Municipal Treasurer A before justifiable motive a long period of time is allowed to elapse
the Ombudsman. Thereafter, the Ombudsman found probable without the party having his case tried. Several factors including
cause against Mayor I and Municipal Treasurer A for violation the length of the delay, the reasons for such delay, the assertion
of Section 3 of Republic Act No. 3019 and violations of or failure to assert such right, and the prejudice caused by the
Sections 3.3.1 and 3.4, Rule III of the Implementing Rules delay must be considered.789
and Regulations of Republic Act No. 8291. On 02 August
2017, the Sandiganbayan found the accused guilty of both Q: Differentiate right to speedy disposition of cases from
violations. On appeal, the accused attacked the validity of the right to speedy trial.
Informations as they alleged conspiracy but failed to implead A: Right to speedy disposition of cases may be invoked before
the municipal accountant and budget officer, who are
any tribunal, whether judicial or quasi-judicial while the right to
indispensable in consummating the offenses charged. Was speedy trial can only be invoked in criminal prosecutions against
there a violation of accused's right to be informed of the nature
courts of law.790
and cause of the accusation for failure to allege conspiracy?
A: No. The petitioners' right to be informed of the nature and
cause of the accusations against them was not violated. The right
to be informed of the nature and cause of the accusation is not
violated if the Complaint or Information sufficiently alleges the
facts and circumstances constituting the offense.

789 Development Bank of the Philippines v. Commission on Audit, G.R. No. 247787,
02 March 2021.
788 People v, Monteron, G.R. 130709, 06 March 2002. 799 Cagang v. Sandiganbayan, G.R. 206438, 206458, 210141-42, 31 July 2018.
 324 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 325
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Q: What encompasses the right to impartial trial? commitment is a meritorious ground, the right of the accused to
speedy trial has not been substantially violated.795
A: It refers to the right to have a judge that is not only impartial
but must also appear to be impartial to give added assurance to Right of Confrontation
the parties that his decision will be just.791
0
Q: What is the purpose of the constitutional right of
Q: What does public trial mean? confrontation?
A: It means that court doors must be open to those who wish to
A: Constitutional confrontation requirements have been held to
come, sit in the available seats, conduct themselves with decorum have two purposes: (1) to secure the opportunity of cross-
and observe the trial process.792 examination; and (2) to obtain the benefit of the moral impact of
Q: Can the judge exclude the public from the courtroom the courtroom atmosphere as it affects the witness' demeanor.796
without violating the right of the accused to a public trial? Right to Compulsory Processes
A: Yes. Rule 119, Section 24 of the Rules of Court provides
Q: What is the coverage of the right to compulsory processes
that the judge may, motu proprio, exclude the public from the
of an accused?
courtroom if the evidence to be produced during trial is offensive
to decency or public morals. He may also, on motion of the A: The right to compulsory process of an accused pertains to:
accused, exclude the public from the trial except court personnel (1) his right to secure the attendance of witnesses; and (2) his
and the counsel of the parties.793 right to the production of evidence on his behalf.797

Q: Charged by Francisco with libel, Pablo was arraigned on Trial in Absentia

January 3, 2000. Pre-trial was dispensed with and continuous
trial was set for March 7, 8 and 9, 2000. On the first setting, Q: What are the requisites of a valid trial in absentia?
the prosecution moved for its postponement and cancellation ■
A: The requisites for a trial in absentia are (1) the accused has
of the other settings because its principal and probably only
already been arraigned, (2) he has been duly notified of the trial,
witness, the private complainant Francisco, suddenly had to
■ and (3) his failure to appear is unjustifiable.798
go abroad to fulfill a professional commitment. The judge
instead dismissed the case for failure to prosecute. Would the Right to Speedy Trial and Speedy Disposition of Cases
grant of the motion for postponement have violated the
accused's right to speedy trial?794 Q: What is the rationale of the right of the accused to a
speedy trial and to a speedy disposition of cases?
A: No. Considering that it was the first time that a motion for
postponement was made and the need to attend a professional

79' People v. Opida, G.R. L-46272, 13 June 1986. 795 People v. Leviste, G.R. No. 104386, 28 March 1996.
792 Perez v. Estrada, A.M. 01-4-03-SC, 29 June 2001. 796 G.R. L-48883, 06 August 1980.
People v. Seneris,
793 A.M. No. 004-07-SC, 21 November 2000. 797 CONST., Art. III, Sec. 14(2).
794 BAR 2000. 793 Berrnar•do v. People, G.R. No. 166980, 04 April 2007.
 326 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 327
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A: The right of the accused to a speedy trial and to a speedy disposition of cases, alongside with pertinent jurisprudence
disposition of the case against him was designed to prevent the that support their foregoing contention. Was there a violation
oppression of the citizen by holding criminal prosecution suspended of the petitioners' right to speedy disposition of cases?
over him for an indefinite time, and to prevent delays in the
administration of justice by mandating the courts to proceed with A: Yes. The petitioners' right to speedy disposition of cases was
reasonable dispatch in the trial of criminal cases. 799 violated. In resolving questions involving the right to speedy
disposition of cases, the Court was guided by its ruling in Cagang v.
Q: When is the right to speedy trial and disposition of cases Sandiganbayan, Fifth Division (Cagang), where it laid down
violated? guidelines regarding the computation of the length of delay of a
case, among others. Specifically, the Cagang doctrine provides
A: The right to a speedy trial and a speedy disposition of a case that for the purpose of determining whether inordinate delay
are violated only when the proceeding is attended by vexatious, 4
exists, a case is deemed to have commenced from the filing of
capricious and oppressive delays. The inquiry as to whether or the formal complaint and the subsequent conduct of the preliminary
not an accused has been denied such right is not susceptible by investigation. Thus, the case against Javier and Tumamao would
precise qualification."' be deemed initiated only upon the filing of the complaint, or on
07 April 2011.
Q: The Commission on Audit (COA) found that the procurement
made by the Province of Isabela of 15,333 bottles of liquid Similarly, Javier and Tumamao were given the opportunity to be
organic fertilizer was done without open competitive bidding, heard, and were therefore able to file their counter-affidavits on
and that the procured items were overpriced. As a consequence, 15 November 2011 and 22 November 2011, respectively. After
the Task Force of Abono then filed a complaint before the these dates, it appears from the record that the case had become
Office of the Ombudsman against the public officers involved dormant until 05 December 2016 when the Ombudsman approved
in the subject transaction, including petitioners Javi and the resolution finding probable cause against Javier and Tumamao.
Dani who were the Provincial Accountant and Provincial From the foregoing, there is an unexplained delay of five years
Agriculturist of Isabela, respectively. from the time the counter-affidavits were filed to the termination
of the preliminary investigation through the approval of the
After almost five years, the Special Panel on Fertilizer Fund
Ombudsman's resolution finding probable cause.
Scam of the Ombudsman issued its Resolution finding probable
cause to indict Javi and Dani, which was thereafter approved Q: On 21 October 2013, the Field Investigation Office (FIO)
by the Ombudsman. Subsequently, the Sandiganbayan set of the Office of the Ombudsman filed a Complaint-Affidavit
the date of the supposed arraignment. However, Javier and dated 16 January 2013 with the Office of the Ombudsman,
Tumamao filed a Motion to Quash, arguing therein that the charging former Nueva Ecija Governor Josie and petitioner
period constituting five years and four months from the filing of Panchman (Petitioner) with violations of Section 3(e) of
the complaint to the approval of the resolution finding probable Republic Act No. 3019, Republic Act No. 8291, among other
cause constituted delay which violated their right to speedy charges. On 07 January 2014, the Office of the Deputy
Ombudsman for Luzon directed petitioner and Joson to
submit their respective counter-affidavits.
799 Cagang v. Sandiganbayan, Fifth Division, G.R. No. 206438 and 206458, 31 July 2018.
800
Id.
 328 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 329
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On 01 July 2015, the Special Panel of Investigators submitted petitioner had the right under the Rules of Procedure of the
their draft resolution finding probable cause against petitioner Ombudsman to seek reconsideration or move for a reinvestigation
for violation of Republic Act No. 8291 and Section 3(e) of of the Resolution approved by the Ombudsman. He did not do
Republic Act No. 3019, and dismissed the rest of the charges. so. Instead, he slept on his rights and merely waited until the
On 15 September 2016, the Ombudsman approved the Resolution Informations were filed against him with the Sandiganbayan.
dated 01 July 2015. Petitioner did not seek a reconsideration
of the Resolution. Thus, on 31 January 2017, the Office of the Moreover, the one (1) year, four (4) months and sixteen (16) day
Special Prosecutor (OSP) filed the Informations against the period between the approval by Ombudsman of the Resolution
petitioner with the Sandiganbayan. on 15 September 2015 and the filing of the Informations by the
OSP on 31 January 2017 did not violate petitioner's right to
On 17 May 2017, petitioner moved to quash the Informations speedy disposition of cases as the prosecution was able to justify
contending that the Ombudsman has lost jurisdiction to file the delay because the Informations had to pass the scrutiny of
the cases due to inordinate delay in the conduct of the different offices within the Ombudsman.801
preliminary investigation. Petitioner averred that despite the
approval by the Ombudsman of the Resolution dated 01 July Q: Is the right to speedy disposition of cases considered
2015 on 15 September 2015, it still took one (1) year and waived for failure of the accused to invoke the said right?
three (3) months to cause the filing of the Informations
A: No. The renunciation of a constitutional right must be positively
before the Sandiganbayan. Therefore, the Ombudsman spent demonstrated. The implied waiver of such right cannot be
three (3) years and two (2) months, more or less, to conduct
• presumed. If any, the waiver must be performed with sufficient
the preliminary investigation and the filing of the Informations awareness of the relevant circumstances and likely consequences.
before the Sandiganbayan. Was there a violation of Petitioner's
There must be persuasive evidence of an actual intention to
right to speedy disposition of cases in the case at bar? relinquish the right. Mere silence of the holder of the right
A: There was no violation of the right to speedy disposition of should not be easily construed as surrender thereof. The courts
cases since there was no delay in the case at bar. The factors to must indulge every reasonable presumption against the existence
802
consider in treating petitions invoking the right to speedy and validity of such waiver.
disposition of cases are: (1) the length of delay; (2) reasons for
the delay; (3) assertion of the right by the accused; and (4) Q: What are the factors that should be considered in
prejudice to the respondent. determining whether the right to speedy disposition of cases
is violated?
Despite the pendency of the case since 2013, petitioner only
A: The "balancing test" to determine whether accused's right to
invoked his right to speedy disposition of cases when he moved
to quash the Informations on 17 May 2017, three (3) years, five speedy trial and speedy disposition of cases has been violated
requires consideration of the four-fold factors: (i) length of delay;
(5) months, and twenty-four (24) days from the time he was ordered
by the Deputy Ombudsman for Luzon to submit his counter- (ii) reason for delay; (iii) defendant's assertion or non-assertion
of his right; and (iv) prejudice to defendant resulting from delay.
affidavit. The accused must invoke his or her constitutional right
to speedy disposition of cases in a timely manner and failure to
do so constitutes a waiver of such right even when he or she has 801 Pancho v. Sandiganbayan, G.R. Nos. 234886-911 & 235410, 17 June 2020.
already suffered or will suffer the consequences of delay. Notably, 802 Figueroa v. Sandiganbayan, G.R. No. 235965-66, 15 February 2022. J. Lopez case.
330 COMPENDIOUS BAR REVIEWER BILL OF•RIGHTS 331
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None of these elements, however, is either a necessary or fact, an accused may validly be compelled to be photographed or
sufficient condition; they are related and must be considered measured, or his garments or shoes removed or replaced, or to
together with other relevant circumstances.' move his body to enable the foregoing things to be done without
violation his or her rights against self-incrimination!'
Right Against Self-Incrimination
Q: X, the wife of an alleged victim of enforced disappearance,
Scope and Limitations applied for the issuance of a Writ of Amparo before a
Regional Trial Court in Tarlac. Upon motion of X, the court
Q: What encompasses the right against self-incrimination? issued inspection and production orders addressed to the
A: The right against self-incrimination includes: (i) to be exempt AFP Chief of Staff to allow entry at Camp Aquino and
from being a witness against himself; and (ii) to testify as permit the copying of relevant documents, including the list
witness in his own behalf. It is accorded to every person who of detainees, if any. Accompanied by court-designated Commission
gives evidence, whether voluntary or under the compulsion of on Human Rights (CHR) lawyers, X took photographs of a
subpoena, in any civil, criminal, or administrative proceedings.'" suspected isolation cell where her husband was allegedly seen
being held for three days and tortured before he finally
Q: A man was shot and killed and his killer fled. Moments disappeared. The CHR lawyers requested one Lt. Valdez for
after the shooting, an eyewitness described to the police that a photocopy of the master plan of Camp Aquino and to
the slayer wore white pants, a shirt with floral design, had confirm in writing that he had custody of the master plan.
boots and was about 70 kilos and 1.65 meters. Landoy, who Lt. Valdez objected on the ground that it may violate his
807
fit the description given, was seen nearby. He was taken into right against self-incrimination. Decide with reasons.
custody and brought to the police precinct where his pants,
A: The objection of Lt. Valdez is not valid. The right against
shirt and boots were forcibly taken and he was weighed,
self-incrimination refers to testimonial evidence and does not
measured, photographed, fingerprinted and subjected to paraffin
apply to the production of a photocopy of the master plan of
testing. At his trial, Landoy objected to the admission in
Camp Aquino, because it is a public record. He cannot object to
evidence of the apparel, his height and weight, his photographs,
the request for him to confirm his custody of the master plan,
fingerprints comparison and the results of the paraffin test,
because he is the public officer who had custody of it.808
asserting that these were taken in violation of his right
against self-incrimination. Rule on the objection."' Immunity Statutes
A: Landoy's objection is not tenable. The right against self-
Q: What are the two types of statutory immunity?
incrimination applies only against testimonial evidence and not
when the body of the accused is proposed to be examined. In A: The two types of statutory immunity are transactional
immunity and use-and-derivative-use immunity. Transactional
immunity is broader in the scope of its protection. By its grant, a
803 Abella v. Commission on Audit Proper and Commission on Audit Regional Office No.
XIII, Buluan City, G.R. No. 238940, 10 April 2022 citing Martin v. Ver, G.R. No.
L-62810, 25 July 1983, J. Lopez case. 806 People v Paynor, G.R. No. 116222, 09 September 1996.
8°4 People v. Ang, G.R. No. 231854, 06 October 2020. S07 BAR 2010.
805 8°8 Almonte v. Vasquez, G.R. No. 95367, 23 May 1995.
BAR 2000.
 332 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 333
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witness can no longer be prosecuted for any offense whatsoever Q: What are the exceptions to double jeopardy?
arising out of the act or transaction. In contrast, by the grant of
use-and-derivative-use immunity, a witness is only assured that A: The exceptions to double jeopardy are: (1) where there has
his or her particular testimony and evidence derived from it will been deprivation of due process and where there is a finding of a
not be used against him or her in a subsequent prosecution." mistrial, or (2) where there has been a grave abuse of discretion
under exceptional circumstances.S12
Right Against Double Jeopardy
Q: What is the rule with respect to dismissal of a case with
Requisites and Limitations express consent of the accused?

Q: What is double jeopardy? A: The rule is that a dismissal with the express consent or upon
motion of the accused does not result in double jeopardy.
A: Double jeopardy refers to when a person is charged with an However, this rule is subject to exceptions: N if the dismissal is
offense and the case is terminated either by acquittal or based on insufficiency of evidence; or (ii) on the denial of the
conviction or in any other manner without the consent of the right to speedy trial.813
accused, the latter cannot again be charged with the same or
identical offense."' Q: For the death of Joey, Erning was charged with the crime
of homicide before the Regional Trial Court of Valenzuela.
Q: What is the constitutional basis of the right against He was arraigned. Due to numerous postponements of the
double jeopardy? scheduled hearings at the instance of the prosecution, particularly
A: Article III, Section 21 of the Constitution provides that no based on the ground of unavailability of prosecution witnesses
person shall be twice put in jeopardy of punishment for the same who could not be found or located, the criminal case was
offense. If an act is punished by a law and an ordinance, pending trial for a period of seven years. Upon motion of
conviction or acquittal under either shall constitute a bar to accused Erning who invoked his right to speedy trial, the
another prosecution for the same act. court dismissed the case.
Eventually, the prosecution witnesses surfaced, and a
Q: What are the elements for double jeopardy to apply?
criminal case for homicide, involving the same incident was
A: For double jeopardy to attach, the following elements must filed anew against Erning. Accused Erning moved for
concur: (1) a valid information sufficient in form and substance dismissal of the case on the ground of double jeopardy. The
to sustain a conviction of the crime charged; (2) a court of prosecution objected, submitting the reason that it was not
competent jurisdiction; (3) the accused has been arraigned and able to present the said witnesses earlier because the latter
had pleaded; and (4) the accused was convicted or acquitted or went into hiding out of fear. Resolve the motion."4
the case was dismissed without his express consent.8 I

809 Mapa v. Vergara, G.R. 100295, 26 April 1994. 812 People v. Alejandro, G.R. No. 223099, 11 January 2018.
81° Carmelo v. People, G.R. No. L-3580, 22 March 1950. 813 Philippine Savings Bank. Spouses Bermoy, G.R. No. 151912, 26 September 2005.
8" Chiok v. People, G.R. Nos. 179814 & 180021, 07 December 2015. 814 BAR 2001.
 334 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 335
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A: The motion should be granted. The dismissal of a criminal health services which may be against their will. Rule on the
case predicated on the right of the accused to a speedy trial merits of the argument.817
amounts to an acquittal for failure of the prosecution to prove his
guilt and bars his subsequent prosecution for the same offense.815 A: There is no involuntary servitude. Involuntary servitude
denotes compulsion or coercion to do something either through
N. Right against Involuntary Servitude (1987 CONST., Art. force, threats, intimidation, or other means. The accreditation
III, Sec. 18) with the PhilHealth, as ruled by the Supreme Court in the case of
Imbong v. Ochoa, should be viewed as an incentive and not a
Q: What is involuntary servitude? punishment. These health service providers also enjoy the liberty
to choose which kind of health service they wish to provide.
A: Involuntary servitude is defined as the condition wherein a
person is compelled by force, coercion, or imprisonment, and O. Right against Excessive Fines, and Cruel and Inhumane
against his will, to labor for another, whether he is paid or not.' Punishments (1987 CONST., Art. III, Sec. 19)
Q: Congress enacted a law to provide Filipinos, especially the Q: When is a fine or penalty considered excessive?
poor and the marginalized, access and information to a full
range of modern family planning methods, including contraceptives, A: For a penalty to be considered obnoxious, it needs to be
intrauterine devices, injectibles, non-abortifacient hormonal more than merely being harsh, excessive, out of proportion, or
contraceptives, and family planning products and supplies, severe. To come under the prohibition, the penalty must be
but expressly prohibited abortion. To ensure its objectives, flagrantly and plainly oppressive or so disproportionate to the
the law made it mandatory for health providers to provide offense committed as to shock the moral sense of all reasonable
information on the full range of modern family planning methods, persons as to what is right and proper under the circumstances.818
supplies and services, for schools to provide reproductive
health education, for non-governmental medical practitioners P. Non-imprisonment for Debts (1987 CONST., Art. DI, Sec. 20)
to render mandatory hours of pro bono reproductive health
Q: What are the invalid causes for imprisonment under the
services as a condition to Philhealth accreditation, and for Constitution?
couples desiring to marry attend a family planning seminar
prior to issuance of a marriage license. It also punishes A: The following are not valid causes for imprisonment under
certain acts of refusal to carry out its mandates. The spouses the Constitution: (1) debt: any civil obligation arising from contract;
Aguiluz, both Roman Catholics, filed a petition to declare the and (2) non-Payment of poll tax. Poll tax is a specific sum levied
law as unconstitutional based on violation of constitutional upon any person belonging to a certain class without regard to
prohibition against involuntary servitude because it requires property or occupation.8'9
medical practitioners to render 48 hours of pro bono reproductive

817 BAR 2018.

Caes v. Intermediate Appellate Court, G.R. No. 74989-90, 06 November 1989,
815 818 Republic v. Al Dela Merced & Sons, Inc., G.R. No. 201501, 22 January 2018.
"Aclaracion v. Gatmaitan, G.R. No. L-39115, 26 May 1975. 819 CONST., Art. III, Sec. 20.
 336 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 337
ON POLITICAL LAW

Q: Section 13 of Presidential Decree No. 115 (Trust Receipts that Y had been extrajudicially killed and that his body was
Law) provides that when the entrustee in a trust receipt mixed in cement to conceal the incident. This prompted X to
agreement fails to deliver the proceeds of the sale or to return institute a petition for the issuance of a writ of amparo to
the goods if not sold to the entrustee-bank, the entrustee is determine whether respondents had violated or threatened to
liable for estafa under the Revised Penal Code. Does this violate Y's right to life, liberty, and security, and to compel
provision not violate the constitutional right against imprisonment respondents to determine the whereabouts of Y, and the
for non-payment of a debt? Explain."' persons responsible for his disappearance or possible death.
A: No. Section 13 of Presidential Decree No. 115 does not The Regional Trial Court (RTC) denied the petition. It held
violate the constitutional right against imprisonment for non- that there was no showing of any refusal on the part of the
payment of a debt. In Lee vs. Rodil, the criminal liability arises respondents to acknowledge or give information on Y's
from the violation of the trust receipt, which is separate and whereabouts such that there was no intention to remove him
distinct from the loan secured by it. Penalizing such an act is a from the protection of the law for a prolonged period. Thus,
valid exercise of police power.821 the third and fourth elements of enforced disappearance are
absent. Was the RTC correct?
Ex Post Facto Laws and Bills of Attainder822
A: Yes. The RTC was correct in ruling that there was no enforced
Q: What is an ex post facto law? disappearance in this case that would warrant the issuance of a
writ of amparo.
A: An ex post facto law is defined as a law that aggravates a
crime or makes it greater than when it was committed. The elements constituting enforced disappearance as defined
under Republic Act No. 9851 are as follows:
Q: What is a bill of attainder?
1. that there be an arrest, detention, abduction, or any form
A: It is a legislative act which inflicts punishment without trial.' of deprivation of liberty;
Writs of Habeas Corpus, Kalikasan, Habeas Data, and Aware' 2. that it be carried out by, or with the authorization,
support or acquiescence of, the State or a political
Q: X received a text message that her son, Y, was arrested organization;
and detained by the barangay tanods for the alleged theft of a
mobile phone. X went to the barangay hall and she was 3. that it be followed by the State or political organization's
informed that Y was already released on that same day from refusal to acknowledge or give information on the fate or
the custody of barangay as evidenced by the entry in the whereabouts of the person subject of the amparo
barangay blotter, signed by Y himself. Rumors circulated petition; and

4. that the intention for such refusal is to remove subject

820 BAR 1993.
person from the protection of the law for a prolonged
821 Lee v Radii, G.K. No. 80544, 05 July 1989. period of time.
82' *Excluded In the 2024 Political Law Syllabus.
823 People v. Ferrer, G.R. Nos. L-32613-14, 27 December 1972.
824 *Excluded In the 2024 Political Law Syllabus.
 338 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 339
ON POLITICAL LAW

For the issuance of the writ of amparo, it is not sufficient that a claim on the assertion that applying the GCTA Law, he has
person's life is endangered. It is not even sufficient to allege and served a total of 38 years, 10 months, and 1 day already; and
prove that a person has disappeared. It must be shown by the (2) he posited that Article 70 of the Revised Penal Code
required quantum of proof that the disappearance was carried out (RPC) caps the duration of the penalty of reclusion perpetua
by, or with the authorization, support, or acquiescence of the at 30 years. Having served a total of 38 years, X concluded
government or a political organization, and that there is a refusal that he has fully served his sentence and his detention no
to acknowledge the same or to give information on the fate or longer holds legal basis. Is X's contention correct?
whereabouts of the missing persons.
A: No. X is not correct since he was not illegally confined or
In this case, the first and second elements were undoubtedly deprived of his liberty.
present. Anent the third requirement, while it was admitted that
Y was indeed arrested and detained, it was sufficiently established Article 70 of the RPC does not cap the duration of the penalty of
by the barangay that Y Was already released from their custody reclusion perpetua at 30 years only. The law only provides that
as evidenced by the barangay blotter, signed by Y himself, and in applying the rules laid out in Article 70, such as the three-fold
which X did not refute. rule, the duration of perpetual penalties shall be computed at 30
years. It is further negated by the pronouncement in People v.
Furthermore, X herself admitted that when she inquired about Baguio826 where the Court similarly held that reclusion perpetua
her son at the barangay hall, she was immediately informed that entails imprisonment for at least 30 years after which the convict
Y was captured but was also released from detention the same becomes eligible for pardon.
day. In support thereof, she was shown the barangay blotter
which bore Y's signature showing his release. Thus, it is clear In the case at bar, X was delivered to the National Bilibid on 15
that there was no refusal to give information on the whereabouts January 1994. Therefore, as of 15 August 2021, he has only
o f Y .825 served a total of 27 years and 7 months of his sentence. Hence,
having been punished to suffer the penalty of reclusion perpetua,
Q: On 26 February 1991, X was charged with the crime of X's continued detention is valid and justified. He has utterly
murder before the Regional Trial Court (RTC). After trial, failed to show that he is illegally confined or deprived of his liberty.
he was found guilty and sentenced to suffer the penalty of Accordingly, the Writ of Habeas Corpus may not be issued and the
reclusion perpetua. Pursuant to his conviction, X was delivered discharge of X from imprisonment should not be authorized.827
to the National Bilibid Prison on 15 January 1994. His conviction
Q: Conrad is widely known in the neighborhood as a drug
was affirmed by the Supreme Court on 07 March 1996.
addict. He is also suspected of being a member of the
Alleging that his continued detention no longer holds legal notorious "Akyat-Condo Gang" that has previously broken
basis in view of Republic Act No. 10592 or the "Good into and looted condominium units in the area. Retired Army
Conduct Time Allowance Law" (GCTA Law), he filed a Colonel Sangre — who is known as an anti-terrorism fighter
petition for the issuance of the Writ of Habeas Corpus on 19 who disclaimed human and constitutional rights and has
August 2015. His argument was two-fold: (1) he anchored his been nicknamed "terror of Mindanao" — is now the Head of

826 G.R. No. 76585, 30 April 1991.

Gil Miguel v. Director of Bureau ofPrisons, UDK No. 15368, 15 September 2021.
827
825 Morada v. Rias, G.R. No. 222226, 14 February 2022.
 340 COMPENDIOUS BAR REVIEWER BILL OF RIGHTS 341
ON POLITICAL LAW

Security of Capricorn Land Corporation, the owner and amparo proceeding.83' It may be established merely to enable the
developer of Sagittarius Estates where a series of robberies court to craft the appropriate remedies against the responsible parties."'
has recently taken place.
Alternative Answer: Although the Writ of Amparo does not
On 01 March 2013, Conrad informed his mother, Vannie, pinpoint criminal culpability for a disappearance, it determines
that uniformed security guards had invited him for a talk in responsibility, for the purpose of imposing the appropriate remedy.
their office but he refused to come. Later that day, however, Responsibility refers to the extent the actors have been established
Conrad appeared to have relented; he was seen walking into to have participated in an enforced disappearance, as a measure
the security office flanked by two security guards. Nobody of the remedy, to be crafted, such as the directive to file the
saw him leave the office afterwards. appropriate criminal and civil cases against the responsible parties.'
Conrad did not go home that night and was never seen again. Q: Command responsibility pertains to the responsibility of
The following week and after a week-long search, Vannie commanders for crimes committed by subordinate members
feared the worst because of Col. Sangre's reputation. She of the armed forces or other persons subject to their control
thus reported Conrad's disappearance to the police. When in international wars or domestic conflicts. The doctrine has
nothing concrete resulted from the police investigation, now found application in civil actions for human rights
Vannie — upon the advice of counsel — filed a petition for a abuses, and in proceedings seeking the privilege of the Writ
Writ of Amparo to compel Col. Sangre and the Sagittarius of Amparo. (a) What are the elements to be established in
Security Office to produce Conrad and to hold them liable order to hold the superior or commander liable under the
and responsible for Conrad's disappearance.828 doctrine of command responsibility?"'
a) Did Vannie's counsel give the correct legal advice? A: The doctrine of command responsibility can be invoked to
determine the author who is accountable for, and has the duty to
A: The advice of Vannie's counsel to file a petition for a Writ
address the disappearance and harassment complained of to
of Amparo is not correct. In order that a Writ of Amparo can be
enable the courts to devise remedial measures that may be
availed of against a private individual for the disappearance of
appropriate under the premises to protect their rights covered by
someone, the involvement of the government is indispensable.
the Writ of Amparo. To hold someone liable under the doctrine
There is no showing of any participation of the government in
of command responsibility, the following elements must obtain:
Conrad's disappearance.'
1. the existence of a superior-subordinate relationship between
b) If the petition would prosper, can Col. Sangre be held
the accused as superior and the perpetrator of the crime
liable and/or responsible for Conrad's disappearance?
as his subordinate;
A: No. Col. Sangre cannot be held responsible for the disappearance
of Conrad. Command responsibility has no applicability to an

83° Rubric° v. Macapagal-Arroyo, G.R. No. 183871, 18 February 2010,

831 Balao v. Macapagal-Arroyo, G.R. No. 186050, 13 December 2011.
828 BAR 2013. 832 Razon, Jr. v. Tagitis, G.R. No. 182498, 03 December 2009.
829 Navia v. Pardico, G.R. No. 184467, 19 June 2012. 333 BAR 2017.
 111

342 COMPENDIOUS BAR REVIEWER

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2. the superior knew or had reason to know that the crime

was about to be or had been committed; and the superior VII. Citizenship
failed to take the necessary and reasonable measures to
prevent the criminal acts or punish the perpetrators thereof:834
(1987 Const., Art. IV)
Q: May the doctrine of command responsibility apply to the A. Filipino Citizens (1987 CONST., Art. IV, Secs. 1-2)
President for the abuses of the armed forces (AFP and PNP)
Q: Define citizenship.
given his unique role as the commander-in-chief of all the
armed forces? Explain your answer.835 A: Citizenship is defined as a more or less permanent membership
A: The President, being the commander-In-chief of all armed in a political community. It denotes possession within a
particular political community of full civil and political rights
forces, necessarily possesses control over the military that
subject to special disqualifications. Reciprocally, it imposes the
qualifies him as a superior within the purview of the command
duty of allegiance to the political community.837
responsibility doctrine. The incumbent President is immune from
suit during his incumbency. The immunity, however, exists only Q: Who are citizens of the Philippines under the 1935, 1973
during the incumbency of the President. Once his or her term has and 1987 Constitution?
ended, he or she may be held accountable under this doctrine."'
A: Art. IV Sec. 1 of the 1935 Constitution includes the
following as Filipino citizenship:
1. Those who are citizens of the Philippine Islands at the
time of the adoption of this Constitution;
2. Those born in the Philippine Islands of foreign parents
who, before the adoption of the Constitution, had been
elected to public office in the Philippine Islands;
3. Those whose fathers are citizens of the Philippines;
4. Those whose mothers are citizens of the Philippines, and
upon reaching the age of majority, elect Philippine
citizenship; and
5. Those who are naturalized in accordance with law.

837 Go v. Republic, G.R. No. 202809, 02 July 2014.

834Rodriguez v. Macapagal-Arroyo, G.R. No. 191805, 15 November 2011.
835 BAR 2017.
836Rodriguez v. Macapagal-Arroyo, G.R. No. 191805, 15 November 2011. 343
344 COMPENDIOUS BAR REVIEWER CITIZENSHIP 345
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Art. III, Sec. 1 of the 1973 Constitution, on the other hand, "as a better guarantee of loyalty to the country of one's parents".
enumerates the following as citizens of the Philippines: Under Art. IV Sec. 1(4) of 1935 Constitution, where only the
mother was a Filipino citizen, it gave the child an opportunity to
1. Those who are citizens of the Philippines at the time of
elect Filipino citizenship only when he reached the age of
the adoption of this Constitution;
majority. Prior to his reaching such an age, the child at most had
2. Those whose fathers or mothers are citizens of the an inchoate right to Filipino citizenship.
Philippines;
Under Art. III, Sec. 1(2) of 1973 Constitution, the principle of
3. Those who elect Philippine citizenship pursuant to the jus sanguinis applied to Filipino mothers being placed on equal
provisions of the Constitution of nineteen hundred and • footing with Filipino fathers as far as the determination of the
citizenship of their children was concerned. Either parents can be
thirty-five; and
a Filipino by natural-born, naturalization or election. As long as
4. Those who are naturalized in accordance with law. 0
the child was born of either Filipino parent, he was considered a
Filipino. One important consideration, however, was the mother
Under Art. IV, Sec. 1 of the 1987 Constitution of the Philippines,
must be a Filipino at the time of the birth of the child. This rule
the following are considered citizens of the Philippines:
however, applied only to those born of a Filipino mother on or
1 Those who are citizens of the Philippines at the time of after 17 January 1973. We note, further, it then disregarded the
the adoption of this Constitution; place of birth of a person. If he was born in a country where the
rule of jus soli was the prevailing principle, it would be a case of
2. Those whose fathers or mothers are citizens of the dual citizenship.
Philippines;
In the 1987 Constitution, the principle of jus sanguinis still
3. Those born before January 17, 1973, of Filipino mothers, applies, and in following the lead of the 1973 Constitution, the
who elect Philippine citizenship upon reaching the age Filipino woman is placed on the same footing as Filipino men in
of majority; and matters of citizenship. It is essential, however, that the mother is
4. Those who are naturalized in accordance with law. a Filipina when the child is born. The principle of parental authority
is also applicable in the 1987 Constitution, so this only applies to
Q: Discuss the evolution of the principle of jus sanguinis as legitimate children, not to adopted. Filipino mothers have parental
basis of Filipino citizenship under the 1935, 1973, and 1987 authority over illegitimate children. Adopted children, on the other
Constitutions.838 hand, as they are not related by blood, do not follow their adoptive
parents' citizenship, despite being under their parental authority.
A: Prior to the 1935 Constitution, the prevailing doctrine for
citizenship was jus soli. Q: Angel is an illegitimate child born to a Chinese father
and a Filipina mother on January 1, 1973. Does Angel need
When the 1935 Constitution was enacted, it began recognizing to elect Philippine citizenship upon reaching the age of
the principle of jus sanguinis where a blood relationship served majority as contemplated in Art. IV, Section 1(3) of the 1987
Constitution which provides that "Those born before
January 17, 1973, of Filipino mothers, who elect Philippine
838 BAR 2015. citizenship upon reaching the age of majority"?
346 COMPENDIOUS BAR REVIEWER CITIZENSHIP 347
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A: No, Angel does not need to elect Philippine citizenship. The 1. Reciprocity requirement is not met;
constitutional and statutory requirement of electing Filipino citizenship
apply only to legitimate children. Being an illegitimate child of a 2. Investors utilize sovereign wealth funds and independent
Filipina mother, Angel became a Filipino upon birth.839 pension funds of states collectively owning more than
• 30% of the capital of such public service; or
Q: What is the citizenship requirement for establishing a
3. Investors are entities controlled by or acting on behalf of
company engaged in telecommunication services in the Philippines?
a foreign government or foreign state-owned enterprises

1
A: Telecommunication entities are generally viewed as public (Sec. 24 and 25 of R.A. No. 11659)
services subject to citizenship requirement of the 1987 Constitution and
the regulation of the Public Service Act (Commonwealth Act Q: Does res judicata apply in cases involving citizenship?
No. 146, as amended by Republic Act No. 11659). Prior to the A: As a general rule, res judicata does not apply in cases
amendment of the Public Service Act, telecommunications and involving citizenship with the exception of the following: (1) a
related services were strictly classified as public utilities and person's citizenship is resolved by a court or an administrative
subject to the 1987 Constitution's nationality restrictions wherein body as a material issue in a full blown hearing; (2) with the
public utilities may only be owned and operated by Filipino active participation of the Solicitor General or his representative;
citizens or entities that are 60% owned and controlled by and (3) the finding of the citizenship is affirmed by the Supreme
Filipinos. (Art. XII, Sec.11 of 1987 Constitution). Court. Once all requisites have been satisfied, the decision on the
Under the recent amendment brought about by R.A. No. 11659, matter shall be conclusive proof of such party's citizenship in
public telecommunications entities (PTEs) are no longer classified as any other case or proceeding."'
public utilities subject to the 60-40% constitutional requirement
Q: Explain the Doctrine of Indelible Allegiance.
on Philippine nationality, but as a public service owning critical
infrastructure. The law defines critical infrastructure as any A: Under the Doctrine of Indelible Allegiance, an individual
public service which owns, uses, or operates systems and assets, may be compelled by municipal law to retain his original
whether physical or virtual systems and assets, so vital to the nationality even if he has already renounced or forfeited it under
Republic of the Philippines that the incapacity or destruction of the laws of the second state whose nationality he has acquired."'
such systems or assets would have a detrimental impact on
national security. Thus, under the enactment of new law, PTEs Q: What are the classes of citizens that are recognized under
may be 100% foreign owned, provided reciprocity to Philippine the present Constitution?
national is provided by foreign law, treaty or international
A: There are only two types of citizens under the 1987
agreement. (Sec.25 of R.A. No. 11659)
Constitution: (1) natural-born citizen and (2) those naturalized in
Nonetheless, Filipino ownership requirement may still be imposed accordance with law. A citizen who is not a naturalized Filipino,
under any of the following circumstance:

84° Go v, Republic, G.R. No. 191810, 22 June 2015

839 Republic v. Chule Li177, G.R. No. 153883, January 13, 2004. 8`"
 348 COMPENDIOUS BAR REVIEWER CITIZENSHIP 349
ON POLITICAL LAW

i.e., did not have to undergo the process of naturalization to Q: What is the citizenship status of foundlings?
obtain Philippine citizenship, necessarily is a natural-born Filipino.'"
A: A foundling found in the Philippines and/or in Philippine
Q: Who are considered natural-born citizens of the Philippines? embassies, consulates and territories abroad is presumed a natural-
born Filipino citizen regardless of the status or circumstances
A: The following are considered natural-born citizens of the of birth.'
Philippines:
Q: What are the rights accorded to foundlings?
1. Those who are citizens of the Philippines from birth
without having to perform any act to acquire or perfect A: As a natural-born citizen of the Philippines, a foundling is
their Philippine citizenship;" accorded with rights and protection at the moment of birth
equivalent to those belonging to such class of citizens whose
2. Those born before January 17, 1973, of Filipino 848
citizenship does not need perfection or any further act.
mothers, who elect Philippine citizenship upon reaching
the age of majority;844 and Moreover, a foundling shall, as a matter of right, be entitled to
every available government program or service, including registration,
3. Foundlings found in the Philippines and/or in Philippine
facilitation of documents for adoption, education, legal and police
embassies, consulates and territories abroad regardless of protection, proper nourishment and medical care for survival and
the status or circumstances of birth." development, and admission to safe and secure child centers.'
The primary consideration is the mother must be a Filipino at the
time of the birth of the child. This rule however, applies only to Q: True or False. Dual citizenship is not the same as dual
those born of a Filipino mother on or after 17 January 1973. allegiance."'
A: True. Dual citizenship arises when, as a result of the concurrent
Q: Who are foundlings? application of the different laws of two or more states, a person
A: A foundling is a deserted or abandoned child or infant with is simultaneously considered a national by the said states. Dual
unknown facts of birth and parentage. This shall also include allegiance, on the other hand, refers to the situation in which a
those who have been duly registered as a foundling during her or person simultaneously owes, by some positive act, loyalty to two
his infant childhood but have reached the age of majority without or more states. While dual citizenship is involuntary, dual
benefitting from adoption procedures upon the passage of this law.' allegiance is the result of an individual's volition."'

Q: Who are considered dual citizens?

A: The following are considered as dual citizens:

842 Bengson III v. HRET,G.R. No. 142840, May 7, 2001. 847 Foundling Recognition and Protection Act, Sec. 5.
843 1987 Constitution, Art. IV, Sec. 2. 848 Foundling Recognition and Protection Act, Sec. 5.
844 Id. 849 Foundling Recognition and Protection Act, Sec. 8.
84' Foundling Recognition and Protection Act, Sec. 5. 8'° BAR 2009.
846 R.A. No. 11767, hereinafter "Foundling Recognition and Protection Act", Sec. 3. 851 Mercado v. Manzano, G.R. No. 135083, 26 May 1999,
 350 COMPENDIOUS BAR REVIEWER CITIZENSHIP 351
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1. Those born of Filipino fathers and/or mothers in foreign Q: Mr. A is a natural born Filipino citizen. In view of his
countries which follow the principle of jus soli,. subsequent naturalization as a citizen of the United States of
America, he lost his Filipino citizenship. Thereafter, he applied
2. Those born in the Philippines of Filipino mothers and
alien fathers if by the laws of their father's' country such for repatriation before the Consulate General and took the
Oath of Allegiance to the Republic of the Philippines. He
children are citizens of that country;
then also executed an Affidavit of Renunciation of his foreign
3. Those who marry aliens if by the laws of the latter's citizenship. Mr. A subsequently filed his Certificate of
country the former are considered citizens, unless by Candidacy for mayorship. Pending issuance of his Philippine
their act or omission they are deemed to have renounced Passport, Mr. A uses his U.S. Passport at least four (4) times
Philippine citizenship;852 and in entering and departing the Philippines.

4. Natural-born citizens of the Philippines who, after the Mr. B, who is also a mayoralty candidate, filed a petition to
effectivity of R.A. No. 9225, become citizens of a foreign disqualify Mr. A and/or to cancel his certificate of candidacy
country, and afterwards undergo the process under the for being a dual citizen, a ground for disqualification to run
same law.853 for public office under the Local Government Code. Is Mr.
A disqualified to run for public office for being considered a
Q: Margarita was born in 1986 to a Filipino mother and dual citizen?
Swedish father. She has been living and continues to live in
the U.S. for the last 20 years and has also been naturalized as A: Yes. There is no doubt that the use of a passport is a positive
a U.S. citizen. She recently reacquired Philippine citizenship declaration that one is a citizen of the country which issued the
under R.A. 9225, the Citizenship Retention and Reacquisition passport, or that a passport proves that the country which issued
Act of 2003. Can Margarita vote in the next national it recognizes the person named therein as its national. The
elections?854 efficacy of Mr. A's renunciation of his American citizenship
when he subsequently used his U.S. passport raises doubt as to
A: Yes. In Macalintal vs. Commission on Elections,' the the true nature of renunciation of foreign citizenship which
Supreme Court explained that dual citizens who are not residents should be complete and unequivocal. The requirement that the
may register under the Overseas Absentee Voting Law. The state renunciation must be made through an oath emphasizes the
ensures equal opportunity to all qualified citizens of the solemn duty of the one making the oath of renunciation to
Philippines abroad in the exercise of this fundamental right of remain true to what he has sworn to. Allowing the subsequent
suffrage. This is in relation to Article V, Sections 1 and 2 of the use of a foreign passport because it is convenient for the person
Constitution where the congress shall provide a system for to do so is rendering the oath a hollow act. It devalues the act of
absentee voting by qualified Filipinos abroad. taking of an oath, reducing it to a mere ceremonial formality.'

Q: Rosebud is a natural-born Filipino woman who got

married to Rockcold, a citizen of State Frozen. By virtue of
the laws of Frozen, any person who marries its citizens would
"2 id
853 Citizenship Retention and Re-acquisition Act, Sec. 3.
854 BAR 2012.
856
855 G.R. No. 157013, July 10, 2003 Maquiling v. Commission on Elections, G.R. No. 195649 (Resolution), July 2, 2013.
352 COMPENDIOUS BAR REVIEWER CITIZENSHIP 353
ON POLITICAL LAW

automatically be deemed its own citizen. After ten years of age of majority." Moreover, Mr. Ching has offered no reason why
marriage, Rosebud, who has split her time between the he delayed his election of Philippine citizenship. The prescribed
Philippines and Frozen, decided to run for Congress. Her procedure in electing Philippine citizenship is certainly not a
opponent sought her disqualification, claiming that she is no tedious and painstaking process. All that is required of the elector is
longer a natural-born citizen. In any event, she could not to execute an affidavit of election of Philippine citizenship and,
seek elective position since she never renounced her foreign thereafter, file the same with the nearest civil registry. Ching's
citizenship pursuant to the Citizenship Retention and unreasonable and unexplained delay in making his election
Reacquisition Act (R.A. No. 9225). Is Rosebud disqualified to cannot be simply glossed over.
run by reason of citizenship?S57
Philippine citizenship can never be treated like a commodity that
A: No. Rosebud never renounced her Filipino citizenship given can be claimed when needed and suppressed when convenient.
she acquired the citizenship of her husband by operation of the One who is privileged to elect Philippine citizenship has only an
law of Frozen Country. Under R.A. 9225, the act of re-acquiring inchoate right to such citizenship. As such, he should avail of the
Philippine citizenship applies only to those who lost their right with fervor, enthusiasm and promptitude. Sadly, in said case,
citizenship by some voluntary act of renunciation. Since Rosebud 0 Ching slept on his opportunity to elect Philippine citizenship and, as
became a naturalized Frozen citizen owing to her marriage a result, this golden privilege slipped away from his grasp.
without any voluntary act or undergoing naturalization process,
she never lost her status as a natural-born citizen. It should be noted that the 1973 and 1987 constitutional provisions
on the election of Philippine citizenship should not be understood as
In running for public office, what is prohibited is dual allegiance. having a curative effect on any irregularity in the acquisition of
Dual allegiance to a foreign state is acquired through an express citizenship for those covered by the 1935 Constitution. If the
and voluntary act of renouncing once allegiance to the Republic citizenship of a person was subject to challenge under the old
of the Philippines and swearing allegiance to a foreign state. charter, it remains subject to challenge under the new charter
even if the judicial challenge had not been commenced before
Q: Can a legitimate child born under the 1935 Constitution the effectivity of the new Constitution.
of a Filipino mother and an alien father validly elect Philippine
citizenship fourteen (14) years after he has reached the age B. Acquisition and Loss of Citizenship
of majority?
Q: What are two modes of acquiring citizenship by birth?
A: No. In the case of In Re: Application for Admission to the
Philippine Bar of Vicente Ching,858 the Supreme Court held that A: There are two modes of acquiring citizenship by birth. First
the span of fourteen (14) years that lapsed from the time Mr. is jus sanguinis or the acquisition of citizenship on the basis of
Ching reached the age of majority until he finally expressed his citizenship of father and/or mother and second, jus soli or the
intention to elect Philippine citizenship is clearly way beyond the acquisition of citizenship on the basis of place of birth.859
contemplation of the requirement of electing "upon reaching the

857 BAR 2014.

858 BAR MATTER No. 914, 01 October 1999. 859 Valles v. COMELEC, G.R. No. 137000, 09 August 2000.
 354 COMPENDIOUS BAR REVIEWER CITIZENSHIP 355
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Q: What is the effect of the marriage of a Filipino citizen to Q: Can citizenship be lost by laches?
an alien?
A: Yes. The phrase "reasonable time" to elect Philippine
A: As a general rule, there is no effect. Art. IV, Sec. 4 of the Citizenship under 1935 Constitution has been interpreted to mean
1987 Constitution provides that citizens of the Philippines who that the election should be made within three (3) years from
marry aliens shall retain their citizenship, unless by their act or reaching the age of majority. However, in Cuenco v. Secretary of
omission, they are deemed, under the law, to have renounced it.'" Justice, the three (3) year period is not an inflexible rule. This
clause has been construed to mean a reasonable period after
Q: Is an action for judicial declaration of Philippine citizenship reaching the age of majority, and the Secretary of Justice has
procedurally and jurisdictionally permissible? ruled that three (3) years is the reasonable time to elect
A: No. The Supreme Court has consistently ruled that there is Philippine citizenship under the constitutional provision adverted
no proceeding established by law, or the rules for the judicial to above, which period may be extended under certain circumstances,
declaration of the citizenship of an individual. There is no specific as when the person concerned has always considered himself
legislation authorizing the institution of a judicial proceeding to a Filipino.864
declare that a given person is part of our citizenry.86' C. Retention and Re-acquisition of Citizenship (RA. No. 9225)
Q: Is exercise of suffrage and participation in election tantamount Q: What is the difference between retention and re-acquisition
to a positive act of election of Philippine citizenship? of Philippine citizenship under R.A. 9225?
A: No. The mere exercise of suffrage, continuous and uninterrupted A: R.A. 9225 makes a distinction between those natural-born
stay in the Philippines, and other similar acts showing exercise Filipinos who became foreign citizens before and after the
of Philippine citizenship cannot take the place of election of effectivity of R.A. 9225. The authors employed the terms "re-
Philippine citizenship.862 acquire" and "retain" to describe the legal effect of taking the
oath of allegiance to the Republic of the Philippines. For those
Q: Can a disbarment case be filed against a lawyer to assail
who were naturalized in a foreign country, they shall be deemed
an alleged misrepresentation that he was a Filipino citizen?
to have re-acquired their Philippine citizenship which was lost
A: No. An attack on a person's citizenship may only be done pursuant to C.A. 63. In the case of those who became foreign
through a direct action for its nullity. A disbarment case is not citizens after R.A. 9225 took effect (i.e., on 17 September 2003),
the proper venue to attack someone's citizenship.' they shall retain Philippine citizenship despite having acquired
foreign citizenship provided they took the oath of allegiance
under the new law."

860 Ly Giok Ha v. Galang, G.R. No. L-21332, 18 March 1966.

861
Republic v. Sagun, G.R. No. 187567, 15 February 2012.
862 1 d .
864 Re: Vicente D. Ching, B.M. No. 914 (Resolution), October 1, 1999.
863 Vazquez v. Kho, A.C. No. 9492, 11 July 2016. 86' David v. Agbay, G.R. No. 1991 13, March 18, 2015.
 356 COMPENDIOUS BAR REVIEWER CITIZENSHIP 357
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Q: What is derivative citizenship? Q: Professor Chiara, a natural-born Filipino citizen, is a

A: The unmarried child, whether legitimate, illegitimate or adopted, resident expert on global military affairs at the National
below eighteen (18) years of age, of those who re-acquire Philippine Defense College where she taught for 12 years. In 2017, she
was tenured as a faculty member at the leading military
citizenship upon effectivity of R.A. 9225 or the Citizenship
academy in the United Kingdom (UK). In April 2022, she
Retention and Re-acquisition Act of 2003 shall likewise be deemed
citizens of the Philippines.866 was granted British citizenship. Having learned of the
renowned expertise of Professor Chiara, the President
Q: Miles, a natural-born citizen of the Philippines, argues invited her to return to the Philippines to be appointed as
110 National Security Adviser. Upon her appointment, Professor
that despite her naturalization as a Japanese citizen after her
marriage to her Japanese husband, she retains and thus Chiara took her oath of allegiance to the Philippines and
never lost her Philippine citizenship by virtue of Republic renounced her allegiance to the U.K. Not satisfied with these
Act No. 9225 or the Citizenship Retention and Re-acquisition • actions, Ramon, the spokesperson of a non-government
Act of 2003? Is Miles correct? organization monitoring national security affairs, demanded
that Professor Chiara renounce her British citizenship. Is
A: No, Miles is not correct. Under Section 3 of Republic Act Ramon correct?"'
No. 9225, Miles will only be deemed to have retained her Philippine
citizenship upon taking the following oath of allegiance to A: No, Ramon is not correct. Under Section 3 of Republic Act
the Republic: No. 9225, considering that Professor Chiara is a natural-born
Filipino citizen who became a foreign citizen after the effectivity
"I , solemnly swear (or affirm) that I will of the same law (i.e. on 17 September 2003), she is deemed to
support and defend the Constitution of the Republic of the have retained her Philippine citizenship upon taking the oath of
Philippines and obey the laws and legal orders promulgated by allegiance to the Republic of the Philippines. In Calilung v.
the duly constituted authorities of the Philippines, and I hereby Datumanong, the Supreme Court explained that by swearing to
declare that I recognize and accept the supreme authority of the the supreme authority of the Republic of the Philippines, the
Philippines and will maintain true faith and allegiance thereto; person implicitly renounces his foreign citizenship. From a plain
and that I impose this obligation upon myself voluntarily without reading of Section 3 of R.A. 9225, it cleared out the problem of
mental reservation or purpose of evasion." dual allegiance and shifted the burden of confronting the issue of
whether or not there is dual allegiance to the concerned foreign
Moreover, pursuant to the same provision, Miles should prove
country. What happens to the other citizenship was not made a
that she was naturalized as a Japanese citizen after the effectivity
concern of R.A. 9225.869
of Republic Act No. 9225 or on 17 September 2003 to be
considered as not to have lost her Philippine citizenship.S67 Moreover, Professor Chiar already complied with Section 5(3) of
the same law upon renouncing her oath of allegiance to the UK.
Thus, considering that Professor Chiara already took her oath of
allegiance to the Philippines and renounced her allegiance to the

866 R.A. No. 9225, hereinafter "Citizenship Retention and Re-acquisition Act", Sec. 4. 868 BAR 2023.
867 Tan v. Crisologo, G.R. No. 193993, 08 November 2017. 869 Calilung v. Datumanong, G.R. No. 160869, 11 May 2007.
358 COMPENDIOUS BAR REVIEWER CITIZENSHIP 359
ON POLITICAL LAW

U.K., she is fully qualified to be appointed as National Security A: No, Republic Act No. 9225 does not extend the benefit of
Adviser by the President. reacquisition of Philippine citizenship to the spouse of the Filipino
citizen. Instead, Shirley should file a petition for citizenship under
Q: Warlito, a natural-born Filipino, took up permanent residence the C.A. No. 473 or the Revised Naturalization Law. Under said
in the United States, and eventually acquired American law, an alien woman married to a Filipino who desires to be a
citizenship. He then married Shirley, an American, and sired citizen of the Philippines must apply therefor by filing a petition
three children. In August 2009, Warlito decided to visit the for citizenship reciting that she possesses all the qualifications
Philippines with his wife and children: Johnny, 23 years of set forth in Section 2, and none of the disqualifications under
age; Warlito, Jr., 20; and Luisa, 17. Sec. 4, of the Revised Naturalization Law.873
While in the Philippines, a friend informed him that he could c) Do the children — Johnny, Warlito, Jr., and Luisa —
reacquire Philippine citizenship without necessarily losing U.S. become Filipino Citizens with their father's reacquisition
nationality. Thus, he took the oath of allegiance required of Philippine citizenship? Explain your answer.
under R.A. 9225.
A: Only the minor child, Luisa, will become a Filipino citizen
a) Having reacquired Philippine citizenship, is Warlito a upon Warlito's reacquisition of his Philippine citizenship. Under
natural-born or a naturalized Filipino citizen today? Sec. 4 of Republic Act No. 9225, the unmarried child, whether
Explain your answer.870 legitimate, illegitimate or adopted, below eighteen (18) years of
A: Warlito is a natural-born Filipino citizen. Repatriation results age, of those who re-acquire Philippine citizenship upon effectivity
in the recovery of the original nationality. Since Warlito was a of said law shall be deemed citizen of the Philippines.
natural-born Filipino citizen before he lost his Philippine citizenship,
Q: Onofre, a natural-born Filipino citizen, arrived in the
he was restored to his former status as a natural- born Filipino
United States in 1985. In 1990, he married Salvacion, a Mexican,
citizen. Under Section 2 of Republic Act No. 9225, Filipino
and together they applied for and obtained American citizenship
citizens who become citizens of another country shall be deemed • in 2001. In 2015, the couple and their children- Alfred, 21
not to have lost their Philippine citizenship under the conditions
years of age, Robert, 16, and Marie, 14, who were all born in
of said law. Thus, considering that Warlito took the oath of
•
the U.S.-returned to the Philippines on June 1, 2015, were
allegiance as required under R.A. 9225, he is deemed not to have informed that Onofre could reacquire Philippine citizenship
lost his natural-born Filipino citizen status.871
without losing his American citizenship. Onofre went home to
a the Philippines and took the oath of allegiance prescribed
b) With Warlito having regained Philippine citizenship, will
Shirley also become a Filipino citizen? If so, why? If not, under R.A. No. 9225. On October 28, 2015, he filed a
what would be the speediest procedure for Shirley to Certificate of Candidacy to run in the May 9, 2016 elections
acquire Philippine citizenship? Explain.sn for the position of Congressman in his home province of
Palawan, running against re-electionist Congressman Profundo."4

870 BAR 2009.

871 Bengson III v. House of Representatives Electoral Tribunal, G.R. No. 142840, 07
May 2001. 873 Burca v. Republic, G.R. No. L-24252, 30 January 1967.
872 BAR 2009. 874 BAR 2016.
360 COMPENDIOUS BAR REVIEWER CITIZENSHIP 361
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a) Did Onofre's reacquisition of Philippine citizenship

benefit his wife, Salvacion, and their minor children and
• Certificate of Candidacy to become a district representative
of Quezon City. Renato filed a petition for exclusion against
confer upon them Filipino citizenship? Cardo on the ground that the latter was not a Filipino citizen
when he registered as a voter. For his part, Cardo contends
A: No. The reacquisition of Philippine citizenship by Onofre did
that he effectively renounced his American citizenship as he
not automatically make his American wife, Salvacion, a Filipino
had been continuously residing in the Philippines. He had
citizen. Republic Act No. 9225 does not provide that the foreign
I also found employment within the country and even set up a
wife of a former Filipino citizen who reacquired his Filipino
school somewhere in Greenhills. Cardo also claims that his
citizenship will automatically become a Filipino citizen.
reacquisition of Philippine citizenship through R.A. No. 9225
Only Robert, who is 16 years old, and Marie, who is14 years old, has a retroactive effect, such that a natural-born Filipino
became Filipino citizens. Under Sec. 4 R.A. 9225, the unmarried citizen is deemed never to have lost his Filipino citizenship. Is
children below eighteen (18) years of age, of those who reacquire Cardo correct in his contention?
Philippine citizenship are also deemed citizens of the Philippines.
A: No, Cardo is not correct. Once Philippine citizenship is
b) Before the May 9,2016 elections, Profundo's lawyer filed renounced because of naturalization in a foreign country, one
a Petition to Deny Due Course or to Cancel the Certificate cannot be considered a Filipino citizen unless and until his or her
of Candidacy against Onofre. What grounds can he raise allegiance to the Republic of the Philippines is reaffirmed. R.A.
in his Petition to support it? No. 9225 contains no provision stating that it may be applied
retroactively as regards natural-born citizens who became naturalized
A: The lawyer of Profundo may ask for the cancellation of the citizens of a foreign country prior to the effectivity of the said
Certificate of Candidacy on two (2) reasons: first, he failed to law. Consequently, Cardo who renounces his Philippine citizenship
execute an affidavit renouncing his American citizenship as effectively becomes a foreigner in the Philippines with no political
required by Section 5(2) of Republic Act No.9225; and second, right to participate in Philippine politics and governance, absent
he lacked one-year residence in the Philippines as required by proper taking of oath of allegiance.875
Section 6, Article VI of the 1987 Constitution.
Q: What are the requirements for dual citizens to be
Q: Cardo, born to Filipino parents, became a naturalized appointed to a public office?
citizen of the U.S. In 2009, he applied to be a registered voter
of Quezon City and indicated that he was a Filipino citizen at A: Dual citizens appointed to any public office shall subscribe
birth. One month after, he took an Oath of Allegiance to the and swear to an oath of allegiance to the Republic of the
Republic of the Philippines before the notary public. After Philippines and its duly constituted authorities prior to their
which, he filed a petition before the Bureau of Immigration assumption of office and renounce their oath of allegiance to the
(BI) for the reacquisition of his Philippine citizenship. He country where they took that oath."'
stated in his petition that he lost his Philippine citizenship
when he became a naturalized American citizen. However,
Cardo executed a sworn declaration renouncing his allegiance
to the U.S.A. Thereafter, the BI confirmed his reacquisition
of Philippine citizenship. On the same day, Cardo filed his 875 Tan v. Crisologo, G.R. No. 193993, 08 November 2017.
876 Citizenship Retention and Re-acquisition Act, Sec. 5.
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Q: Jomar, a naturalized American citizen who later became born Filipino, it is enough for a person with dual citizenship who
a dual citizen under Republic Act No. 9225 (the Citizenship seeks public office to file his certificate of candidacy and swear
Retention and Reacquisition Act), decided to run for Congress to the oath of allegiance contained therein. Sec. 5(3) of R.A. No.
and thus, filed a certificate of candidacy (CoC). A citizen 9225 applies to naturalized citizens who reacquire Filipino
argued that Jomar is ineligible for the position because of his citizenship and desire to run for elective public office in the
status as a dual citizen. Jomar responded that his act of filing Philippines. Hence, the twin requirements in R.A. No. 9225 do
a CoC amounted to his renunciation of foreign citizenship, not apply to Jomar.S79
rendering him eligible for the position.
Q: Who has the burden of proving dual allegiance of a person?
a) Was Jomar's filing of a CoC sufficient to renounce
foreign citizenship? Explain. A: The foreign country alleging dual allegiance bears the burden
of proof. Republic Act 9225 allows dual citizenship to natural-
A: No, the filing of Jomar of his CoC is not sufficient to born Filipino citizens who have lost Philippine citizenship by
renounce foreign citizenship. For those desiring for an elective reason of their naturalization as citizens of a foreign country. On
public officer, they are required to: its face, it does not recognize dual allegiance. By swearing to the
1. Meet all the qualifications for holding such public office supreme authority of the Republic of the Philippines, the person
as required under the Constitution and existing laws; implicitly renounces his foreign citizenship. From a plain
reading in Section 3 of RA 9225, it cleared out the problem of
2. Make a personal and sworn renunciation of any and all dual allegiance and shifted the burden of confronting the issue of
foreign citizenship before any public officer authorized whether or not there is dual allegiance to the concerned foreign
to administer an oath at the time of the filing of the country. What happens to the other citizenship was not made a
certificate of candidacy; and concern of R.A. 9225.880
3. Take the oath of allegiance prescribed under Sec. 3 of D. Naturalization (C.A. No. 473, Secs. 2-4; C.A. No. 63, as
R.A. No. 9225.8' amended; A.M. No. 21- 07-22)
b) Assuming that Jomar is a dual citizen because his parents Q: What are the three modes of naturalization?
are Filipino citizens and he was born in California, USA,
was his filing of a CoC sufficient to renounce his foreign A: Naturalization may be either administrative, judicial, or
citizenship? Explain.878 legislative. As the name implies, administrative naturalization is
the grant of Filipino citizenship to aliens via administrative
A: Yes, the filing of his CoC was sufficient to renounce his proceedings and is currently governed by Republic Act No.
foreign citizenship. The facts do not provide that Jomar underwent 9139. Judicial naturalization grants Filipino citizenship through a
the naturalization process to become a U.S. citizen and as a judicial decree and is governed by Commonwealth Act No. 473
natural-born Filipino. Neither did he subsequently become a or the Revised Naturalization Law, as amended. Lastly, legislative
naturalized citizen of another country. Like any other natural-

877 Cordora v. C0.VIELEC, G.R. No. 176947, 19 February 2009. 879 Cordora v. C0,VIELEC, G.R. No. 176947, 19 February 2009.
878 BAR 2019. 889 Calilung v. Datunianong, G.R. No. 160869, May 11, 2007.
 364 COMPENDIOUS BAR REVIEWER CITIZENSHIP 365
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naturalization bestows Filipino citizenship through a statute Chinese. Sometime later, the father, Lao Kian Ben applied
enacted by Congress.88' for naturalization as Filipino citizen before the Special Committee
Q: Will the approval of the petition of a married woman for on Naturalization, pursuant to Letter of Instructions No. 270.
The application was granted and pursuant to this, Lao took
administrative naturalization benefit her alien husband
his Oath of Allegiance and was issued a Certificate of
under RA 9139? Naturalization. Chia Kong Liong, being the wife of Lao Kian
A: No. If the applicant is a married woman, the approval of her Ben, was likewise conferred with Philippine citizenship pursuant
petition for administrative naturalization shall not benefit her to Presidential Decree No. 923. Meanwhile, the three children of
alien husband, although her minor children may still avail of the right the spouses were all born and raised in the Philippines. Upon
to seek the cancellation of their alien certificate of registration.'" reaching the age of majority, the children filed a Petition for
correction of entry in their birth certificates, arguing that the
Q: What are the distinctions of naturalization under C.A. nationality of their parents should be changed from
473 and R.A. 9139? "Chinese" to "Filipino" since their parents had already been
naturalized as Filipino citizens pursuant to Philippine laws.
A: First, C.A. No. 473 applies to all aliens regardless of class, Can the records be corrected despite the absence of an
while R.A. 9139 only covers native-born aliens who lived here in appropriate proceeding to determine whether they are entitled
the Philippines all their lives, who never saw any other country to qualified Filipino citizenship?
and all along thought that they were Filipinos; who have
demonstrated love and loyalty to the Philippines and affinity to A: Yes. It is undisputed that Winston, Christopher, and Jon
the customs and traditions. Nicholas' father, Lao Kian Ben, applied for naturalization under
Letter of Instructions No. 270, and his application was granted
Second, C.A. No. 473 applies to judicial naturalization, while under Presidential Decree No. 923. A perusal of the same will
R.A. 9139 applies to administrative naturalization. readily reveal that the naturalization extends to the alien wife and
Third, the qualifications and disqualifications of an applicant for minor children of the person naturalized upon the wife's showing
naturalization by judicial act are set forth in Sections 2 and 4 of that she does not suffer from any of the disqualifications under
C.A. No. 473. On the other hand, Sections 3 and 4 of R.A. No. Letter of Instructions No. 270, and that she and her minor children
9139 provide for the qualifications and disqualifications of an reside permanently in the Philippines at the time of her husband's
applicant for naturalization by administrative act.883 naturalization. In other words, the only persons to undergo the
proceeding before the Special Committee on Naturalization will
Q: Lao Kian Ben and Chia Kong Liong married each other only be the person naturalized and his wife. The minor children,
in Quezon City and had three children-Jon Nicolas, Winston, in the words of Letter of Presidential Decree No. 836 "follow the
884
and Christopher. In the birth certificate of the three children, it acquired Filipino citizenship of their mother".
was indicated that the nationalities of both parents were

881 Republic v. Lao, G.R. No. 205218, I0 February 2020.

882 R.A. No. 9139 (hereinafter "Administrative Naturalization Law"), Sec. 12
883 So v. Republic of the Philippines, G.R. No. 170603, 29 January Republic v. Lao, G.R. No. 205218, 10 February 2020.
2007. 884
366 COMPENDIOUS BAR REVIEWER CITIZENSHIP 367
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Q: What are the qualifications to be proven by an applicant Q: What are the instances when the requirement of residency
to become a citizen of the Philippines by naturalization? for a continuous period of not less than ten years can be
reduced to five years by an applicant for naturalization?
A: Under Section 2 of Commonwealth Act No. 473, any person
having the following qualifications may become a citizen of the A: The ten years of continuous residence shall be understood as
Philippines by naturalization: reduced to five years for any petitioner having any of the
following qualifications:
1. He must be not less than eighteen"' years of age on the
day of the hearing of the petition; 1. Having honorably held office under the Government of
the Philippines or under that of any of the provinces,
2. He must have resided in the Philippines for a continuous cities, municipalities, or political subdivisions thereof;
period of not less than ten years;
2. Having established a new industry or introduced a useful
3. He must be of good moral character and believes in the invention in the Philippines;
principles underlying the Philippine Constitution, and must
have conducted himself in a proper and irreproachable 3. Being married to a Filipino woman;
manner during the entire period of his residence in the
Philippines in his relation with the constituted government as 4. Having been engaged as a teacher in the Philippines in a
well as with the community in which he is living; public or recognized private school not established for
the exclusive instruction of children of persons of a
4. He must own real estate in the Philippines worth not less particular nationality or race, in any of the branches of
than P5,000.00, or must have some known lucrative education or industry for a period of not less than two
trade, profession, or lawful occupation; years; or

5. He must be able to speak and write English or Filipino' 5. Having been born in the Philippines."'
and any one of the principal Philippine languages; and
Q: Who are disqualified to naturalized as Philippine citizens?
6. He must have enrolled his minor children of school age,
in any of the public schools or private schools recognized A: The following cannot be naturalized as Philippine citizens:
by the Office of Private Education of the Philippines, 1. Persons opposed to organized government or affiliated
where the Philippine history, government and civics are with any association or group of persons who uphold
taught or prescribed as part of the school curriculum, during and teach doctrines opposing all organized governments;
the entire period of the residence in the Philippines
required of him prior to the hearing of his petition for 2. Persons defending or teaching the necessity or propriety
naturalization as Philippine citizen. of violence, personal assault, or assassination for the
success and predominance of their ideas;
3. Polygamists or believers in the practice of polygamy;

885 R.A. No. 6809.

886 1987 Constitution, Art. XIV, Sec. 6. 887 C.A. No. 473, Sec. 3.
 368 COMPENDIOUS BAR REVIEWER CITIZENSHIP 369
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4. Persons convicted of crimes involving moral turpitude; Q: How may Filipino citizenship be lost?
5. Persons suffering from mental alienation or incurable A: A Filipino citizen may lose his citizenship in any of the
contagious diseases; following ways and/or events:
6. Persons who, during the period of their residence in the 1. By naturalization in a foreign country, subject to the
Philippines, have not mingled socially with the Filipinos, exception under Section 3 of R.A. No. 9225;
or who have not evinced a sincere desire to learn and
embrace the customs, traditions, and ideals of the Filipinos; 2. By express renunciation of citizenship;

7. Citizens or subjects of nations with whom the United 3. By subscribing to an oath of allegiance to support the
States and the Philippines are at war, during the period constitution or laws of a foreign country upon attaining
of such war; and twenty-one years of age or more: Provided, however,
That a Filipino may not divest himself of Philippine
8. Citizens or subjects of a foreign country other than the citizenship in any manner while the Republic of the
United States whose laws do not grant Filipinos the right Philippines is at war with any country;
to become naturalized citizens or subjects thereof.'
4. By rendering services to, or accepting commission in,
Q: Ginny failed to attach a copy of a Certificate of Arrival to the armedforces of a foreign country;
her Petition for Naturalization as mandated by Sec. 7 of the
5. By cancellation of the certificates of naturalization;
Revised Naturalization Law or CA 473. Can failure to comply
with the documentary requirements of the naturalization law 6. By having been declared by competent authority, a
be a ground to deny the petition for naturalization? deserter of the Philippine armed forces in time of war,
A: Yes. An applicant for naturalization must show full and unless subsequently, a plenary pardon or amnesty has
been granted; and
complete compliance with the requirements of the naturalization
law; otherwise, his petition for naturalization will be denied. The 7. In the case of a woman, upon her marriage to a foreigner
courts are always mindful that naturalization proceedings are if, by virtue of the laws in force in her husband's
imbued with the highest public interest. The reason for the country, she acquires his nationality.'"
requirement that the certificate of arrival should form part of the
petition is to prevent aliens, who illegally entered the Philippines, Q: As a general rule, rendering service to or accepting commission
from acquiring citizenship by naturalization. The absence of even a in the armed forces of a foreign country will divest one of his
single requirement is fatal to an application for naturalization.'" or her Filipino citizenship. What is the exception/s to this rule?
A: Under Commonwealth Act No. 63, rendering services to or
accepting commission in the armed forces of a foreign country

868 C.A. No. 473, Sec. 4.

889 Republic v. Go Pei Hung, G.R. No. 212785, 04 April 2018. 890 C.A. No. 63, Sec. 1.
 370 COMPENDIOUS BAR REVIEWER CITIZENSHIP 371
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will not result into loss of citizenship of a Filipino provided the citizen before he lost his Philippine citizenship, he will be
following are satisfied: restored to his former status as a natural-born Filipino.892
1. That the rendering of service to, or the acceptance of such Q: May refugees apply for naturalization in the Philippines?
commission in, the armed forces of a foreign country,
and the taking of an oath of allegiance incident thereto is A: Yes. Refugees can apply for naturalization in the Philippines.
with the consent of the Republic of the Philippines The Supreme Court recently issued A.M. No. 21-07-22-SC or
the Rule on Facilitated Naturalization of Refugees and Stateless
2. Any of the following circumstance is present: Persons which allows the filing of a verified petition for naturalization
a. The Republic of the Philippines has a defensive and/or by individual petitioners who are recognized as refugees or
offensive pact of alliance with the said foreign stateless persons. A joint petition may also be filed by immediate
country; or family members, related either by consanguinity or affinity.
Finally, a petition, on behalf of the unaccompanied child or a
b. The said foreign country maintains armed forces on joint petition involving related unaccompanied children, may be
Philippine territory with the consent of the Republic filed by the Department of Social Welfare and Development
of the Philippines (DSWD), the appropriate Local Social Welfare and Development
Office (LSWDO) where the unaccompanied child resides, or the
3. That the Filipino citizen concerned, at the time of rendering child-caring agency having care and custody of the child."'
said service, or acceptance of said commission, and
taking the oath of allegiance incident thereto, states that Q: In 1991, Sefyan Abdelhakim Mohamed (Mohamed) arrived
he does so only in connection with his service to said in Manila. In 2005, Mohamed was recognized as a convention
foreign country: refugee. On June 2, 2006, Mohamed applied for Philippine
citizenship and filed a Declaration of Intention with the Office
4. That any Filipino citizen who is rendering service to, or
of the Solicitor General (OSG). On July 20, 2007, Mohamed
is commissioned in, the armed forces of a foreign country
submitted a Supplemental Declaration of Intention stating
under any of the circumstances mentioned in number 2
that he is not only known as "Sefyan Abdelhakim Mohamed"
(a) or (b) above, shall not be permitted to participate nor
but also as "Sefyan Abdelhakim Mohamed Hussin."
vote in any election of the Republic of the Philippines
during the period of his service to, or commission in, the On August 21, 2007, Mohamed filed a Petition for Naturalization
armed forces of said foreign country.891 before the Regional Trial Court. On October 7, 2009, the
RTC granted Mohamed's application for naturalization and
Q: What is the effect of repatriation in one's citizenship? ruled that he possessed all the qualifications and none of the
A: Repatriation results in the recovery of the original nationality. disqualifications.
This means that a naturalized Filipino who lost his citizenship Thereafter, Mohamed moved before the RTC to take his oath
will be restored to his prior status as a naturalized Filipino as a Filipino citizen and manifested that he had complied
citizen. On the other hand, if he was originally a natural-born

"2 Bengson HI v. HRET, G.R. No. 142840, 07 May 2001.

893
89 C.A. No. 63, Sec. 1(4). Sec.6 of A.M. No. 21-07-22-SC
372 COMPENDIOUS BAR REVIEWER CITIZENSHIP 373
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with the requirements of the law. Specifically, within two qualifications of the applicant and adduce evidence to protect the
years from promulgation of the judgment granting his petition interest of the State.
for naturalization, Mohamed has not left the Philippines;
dedicated himself continuously to a lawful calling or In this case, among the contents of Mohamed's Declaration of
profession; has not been convicted of any offense, or violated Intention are the names for which he is known for. However,
Government promulgated rules; and has not committed any Mohamed's original declaration provided the name "Abdelhakim
act prejudicial to the interest of the nation or contrary to the Mohamed," and it was only in the supplemental declaration that
Government's policies. On October 7, 2011, Mohamed moved the name "Abdelhakim Mohamed Hussin" was incorporated.
before the RTC to admit new evidence that he went to the Contrary to Mohamed's theory, the change he introduced in the
United States of America three times during the two-year declaration as to the names he was known for is substantial.
intervening period for assignments related to his duties as Significantly, in cases of substantial changes in the original
Public Relations Officer of the Qatar Embassy. In its declaration, the mandatory one-year period to file the petition for
Comment, the OSG opined that Mohamed's overseas trips naturalization must be computed from the submission of the
prevented the decision granting him Philippine citizenship supplemental declaration. Otherwise, it will deprive the OSG of
from becoming executory. sufficient time to investigate the qualifications of the applicant
and adduce evidence to protect the interest of the State."'
In spite of the OSG's assertions, the RTC granted Mohamed's
motion to take his oath as a Filipino citizen. The RTC held (b) Discuss the requirement of presenting two credible
that Mohamed's absence during the intervening period was witnesses in a petition for naturalization.
involuntary and required by his professional calling. A: Section 7 of C.A. No. 473 requires the affidavits of two
(a) Upon appeal, the OSG argued that the Declaration of credible witnesses to support the petition for naturalization. The
Intention must be submitted one year before the filing of Supreme Court explained that witnesses are credible at par with
a petition for admission to Philippine citizenship. Yet, the requirements of naturalization laws when they have a good
Mohamed filed his petition for naturalization on August standing in the community; that they are known to be honest and
21, 2007 or less than one year after he submitted his upright; that they are reputed to be trustworthy and reliable; and
Supplemental Declaration of Intention on July 20, 2007. that their word may be taken on its face value, as a good warranty of
Is the OSG correct? the worthiness of the applicant. The character witnesses should
possess such intimate knowledge of the applicant as to be
A: Yes, the OSG is correct. In this case, the one-year period competent to testify of their personal knowledge. This is because
must be computed from Mohamed's filing of his supplemental vouching witnesses stand as insurers of the applicant's conduct
declaration of intention because he introduced substantial change and character."'
in the original declaration. Section 5 of C.A. No. 473 strictly
enjoins the applicant to file with the OSG a declaration under
oath that it is his bona fide intention to become a citizen of the
Philippines one year prior to the filing of the petition for
admission to Philippine citizenship. The purpose of the one-year
period is to give the OSG sufficient time to investigate the 894 Mohamed v. Republic, G.R. No. 220674, 02 December 2021.
895 Id.
 374 COMPENDIOUS BAR REVIEWER CITIZENSHIP 375
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(c) What is the effect of taking an oath of allegiance prior to international human rights law specifically the granting of
the finality of the court's judgment? nationality to refugees and stateless persons." Yet, this statement
cannot be construed in derogation of the rule that all those
A: The oath of allegiance executed prior to finality of the seeking to acquire Philippine citizenship must prove compliance
court's judgment is void. Section 12 of C.A. No. 473 is explicit with all the requirements of the law. Again, Philippine citizenship
that after the lapse of thirty days from and after the date on should not easily be given away. Naturalization is not a right, but
which the parties were notified of the decision of the Court, no
one of privilege of the most discriminating, as well as delicate
appeal has been filed, or if, upon appeal, the decision of the court
and exacting nature, affecting, as it does, public interest of the
has been confirmed by the Supreme Court, and the said decision highest order, and which may be enjoyed only under the precise
has become final, the clerk of the court which heard the petition conditions prescribed by law. Differently stated, the Philippines'
shall issue to the petitioner a naturalization certificate before the international commitment does not amount to a blanket waiver of
naturalization certificate is issued, the petitioner shall, in open
all the legal requirements for naturalization. The 1951 Refugee
court, take the following oath. Convention must be read in consonance with the Philippine
In other words, the oath of allegiance can be administered only statutory requirements.897
after the period to appeal expired. Otherwise, the same is null
and void. Naturalization proceedings are so infused with public Q: Atty. Emily Go, a legitimate daughter of a Chinese father
interest that they have been differently categorized and given and a Filipino mother, was born in 1945. At 21, she elected
special treatment. The strict compliance with all statutory requirements Philippine citizenship and studied law. She passed the bar
of naturalization is necessary before an applicant may acquire examinations and engaged in private practice for many years.
Philippine citizenship. The absence of even a single requirement The Judicial and Bar Council nominated her as a candidate
is fatal to his application.' for the position of Associate Justice of the Supreme Court.
But her nomination is being contested by Atty. Juris Castillo,
Q: True or false. The 1951 Refugee Convention relating to also an aspirant to the position. She claims that Atty. Emily
the Status of Refugees waives our usual legal requirements Go is not a natural-born citizen, hence, not qualified to be
for naturalization under C.A. No. 473. appointed to the Supreme Court. Is this contention correct?
Explain.898
A: False. The 1951 Refugee Convention relating to the Status
of Refugees does not amount to a blanket waiver of all the legal A: No, the contention is not correct. Under Sec. 1(3) Art. IV of
requirements for naturalization. The Philippines is a signatory to the 1987 Constitution, those born before January 17, 1973, of
the 1951 Refugee Convention relating to the Status of Refugees Filipino mothers, who elect Philippine citizenship upon reaching
which outlined the refugees' juridical status, rights, and welfare. the age of majority shall be considered natural-born citizens of
Particularly, under Article 34 thereof, the Philippines agreed to the Philippines. Thus, Atty. Emily Go, being born in 1945 and
facilitate and expedite the naturalization of refugees. having elected Philippine citizenship at the age of 21, is a
natural-born citizen of the Philippines.
In Republic v. Karbasi, the Supreme Court held that "the
Naturalization Law must be read in light of the developments in

8" Id.
896 Id. 398 BAR 2006.
 376 COMPENDIOUS BAR REVIEWER
ON POLITICAL LAW

Q: Atty. Richard Chua was born in 1964. He is a legitimate

son of a Chinese father and a Filipino mother. His father VIII. Law on Public Officers
became a naturalized Filipino citizen when Atty. Chua was
still a minor. Eventually, he studied law and was allowed by A. Public Officers; De Facto and De Jure
the Supreme Court to take the bar examinations, subject to
his submission to the Supreme Court proof of his Philippine Q: What is public office?
citizenship. Although he never complied with such requirement, A: Public office is a right, authority, and duty created and conferred
Atty. Chua practiced law for many years until one Noel Eugenio
by law, by which for a given period, either fixed by law or
filed with the Supreme Court a complaint for disbarment enduring at the pleasure of the creating power, an individual is
against him on the ground that he is not a Filipino citizen. He NI i
invested with some portion of the sovereign functions of the state
then filed with the Bureau of Immigration an affidavit
to be exercised by him for the benefit of the body politic."
electing Philippine citizenship. Noel contested it claiming it
was filed many years after Atty. Chua reached the age of Q: Who is a public officer?
majority. Will Atty. Chua be disbarred for not being a
Filipino citizen? Explain.899 A: A public officer:

A: No, Atty. Chua should not be disbarred. Under Section 15 1. is an individual vested with some portion of the sovereign
of the Revised Naturalization Law, minor children of persons functions of the government to be exercised by him for
naturalized under said law who have been born in the the benefit of the public.901
Philippines shall be considered citizens thereof. Since Atty. 2. refers to those officials whose duties, not being of a
Chua was a minor when his father became a naturalized clerical or manual nature, may be considered to involve
Filipino citizen, Atty. Chua is considered a Philippine citizen the exercise of discretion in the performance of the
under the law. functions of government, whether such duties are precisely
902
defined by law or not.
3. is 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, or shall

900 Fernandez v. SO. Tomas, G.R. No. 116418, 07 March 1995.

901 Alba v. Evangelista, G.R. Nos. L-10360 & L-10433, 17 January 1957.
902 Revised Administrative Code, Book I, Title I, Chapter 1, Art. I, Sec. 2.

899 BAR 2006. 377

378 COMPENDIOUS BAR REVIEWER III
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perform in said Government or in any of its branches executive department are concerned, the President's power of
public duties as an employee, agent, or subordinate control may justify him to inactivate the functions of a particular
official, of any rank or class." office, or certain laws may grant him the broad authority to carry
out reorganization measures.'
Q: What are the elements of public office?
A: The elements of a public office are: Q: What are the characteristics of a public office?
A: A public office can be characterized as follows:
1. It is created by law or by authority of law;
1. It is a public trust and is merely entrusted to the public
2. It is a delegation of a portion of the sovereign powers of the officer.907
government, to be exercised for the benefit of the public;
2. It is not a property and is inherently not protected by the
3. The powers conferred and the duties to be discharged due process clause.
must be defined, directly or impliedly, by the legislature
or through legislative authority.' 3. It is not a heritable possession.
4. The duties pertaining thereto are performed independently, 4. It is outside the commerce of man.
without control of a superior power other than law, unless
they are those of an inferior or subordinate officer, created Q: What are the differences between a de facto officer and a
or authorized by the legislature and placed by it under de jure officer?
the general control of a superior officer or body; and
A: A de facto officer is one in possession of an office in the
5. It is continuing and permanent in nature and not open exercise of its functions under color of an election or
occasional or intermittent." appointment even though the election or appointment may be
irregular or informa1.908 A de jure officer is one who is legally
Q: How are public offices created, and how are they abolished? appointed or elected, and possesses all qualifications to the office.'
A: The general rule has always been that the power to abolish a A de jure officer and de facto officer may be further distinguished
public office is lodged with the legislature. This proceeds from as follows: (1) The former rests on right, while the latter, on
the legal precept that the power to create includes the power to reputation; (2) The former has the lawful right or title to the
destroy. A public office is either created by the Constitution, by office, while the latter has the possession and performs the duties
statute, or by authority of law. Thus, except where the office was under color of right or authority without being technically
created by the Constitution itself, it may be abolished by the qualified in all points of law to act; and (3) The former cannot be
same legislature that brought it into existence. The exception, removed in a direct proceeding, while the latter may be ousted in
however, is that as far as bureaus, agencies or offices in the a direct proceeding against him.

906 Buklod ng Kawaning EHB v. Zamora, G.R. Nos. 142801-802, 10 July 2001.
903
Revised Penal Code, Art. 203. 907 CONST., Art. XI, Sec. 1.
904 Laurel v. Desierto, G.R. No. 145368, 12 April 2002. 9°8 Dimaandal v. Commission on Audit, G.R. No. 122197, 26 June 26, 1998.
9°5 State v. Taylor, 144 N.W. 2d. 289. 9°9 Arroyo v. Court of Appeals, G.R. No. 202860, 10 April 2019.
 380 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 381
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I.
Q: What are requisites of a de facto officer? and has discharged the duties pertaining thereto, is legally entitled
A: The requisites of a de facto officer are as follows: to the emoluments of the office, and may in an appropriate action
recover the salary, fees and other compensations attached to the
1. There must be a de jure office; office. This doctrine is, undoubtedly, supported on equitable
grounds since it seems unjust that the public should benefit by
2. There must be color of right or general acquiescence by the services of an officer de facto and then be freed from all
the public; and liability to pay any one for such services.'
3. There must be actual physical possession of the office in Q: What is the proper remedy against a de facto officer?
good faith.
A: The title to a public office may not be contested except
One can qualify as a de facto officer only if all these elements directly, by quo warranto proceedings; and it cannot be assailed
are present. There can be no de facto officer where there is no collaterally, even through mandamus or a motion to annul or set
dejure office, although there may be a de facto officer in a de aside order. A quo warranto proceeding is the proper legal
jure office.910 remedy to determine the right or title to the contested public
Note that the acts of a de facto officer, if within the competence office and to oust the holder from its enjoyment. It is brought
of his office, are valid, insofar as the public is concerned.' against the person who is alleged to have usurped, intruded into,
or unlawfully held or exercised the public office, and may be
Q: Is a de facto officer entitled to salary? commenced by the Solicitor General or a public prosecutor, as
40 the case may be, or by any person claiming to be entitled to the
A: The general rule is that the rightful incumbent may recover public office or position usurped or unlawfully held or exercised
from an officer de facto the salary received by the latter during by another.914
the time of his wrongful tenure, even though he entered into the
office in good faith and under color of title. A de facto officer, Q: What is the basis for the powers of public officers?
not having good title, takes the salaries at his risk and must
therefore account to the de jure officer for whatever amount of A: The entire source of public governmental authority is found
salary he received during the period of his wrongful retention of in the people themselves.915 As such, the right to be a public
the public office. The de facto doctrine has been formulated not officer, or to exercise the powers and authority of a public office,
for the protection of the de facto officer principally, but rather must find its source in some provision of the Constitution or by
for the protection of the public and individuals who get involved statute or both."
in the official acts of persons discharging the duties of an office
without being lawful officers.'
As an exception, in cases where there is no de jure officer, a de
facto officer, who, in good faith has had possession of the office
913 Civil Liberties Union v. Executive Secretary, G.R. Nos. 83896 & 83815, 22
February 1991.
910 Tuanda v. Sandiganbayan, G.R. No. 110544, 17 October 1995. 914 Topacio v. Ong, G.R. No. 179895, 18 December 2008.
91 1Gonzales v. Commission on Elections, G.R. No. L-28196, L-28224, 09 November 1967. 915 CONST., Art II, Sec. 1.
912 Monroy v. Court of Appeals, G.R. No. L-23258, 01 July 1967. 916 Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers, 329.
382 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 383
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Q: What is the doctrine of necessary implication? Q: What are the general rights of public officers?
A: The doctrine of necessary implication provides that an A: The following are the rights of public officers:
officer has only such powers as are expressly granted to him and
those necessarily implied in the exercise thereof.917 1. Right to Office — It refers to the just and legal claim to
exercise powers and responsibilities of the public
Q: What is the doctrine of qualified political agency? office.92' Upon the issuance of an appointment and the
appointee's assumption of the position in the civil
A: The doctrine of qualified political agency provides that the service, the employee acquires a legal right which cannot
acts of Secretaries of the departments, performed and promulgated be taken away either by revocation of the appointment or
in the regular course of business are, unless disapproved or by removal except for cause and with previous notice
reprobated by the President, presumptively the acts of the President.918 and hearing.922
Nonetheless, there are certain powers that are reserved to the
President which cannot be exercised by the Secretaries of the 2. Right to Salary — The salary of a public officer cannot
department such as the declaration of Martial Law, pardoning be seized by garnishment, attachment, or order of
power, suspension of the writ of habeas corpus, and other purely execution. Public policy also prohibits the assignment of
discretionary powers.919 unearned salaries or fees."'

Q: What are the general powers of a public officer? 3. Right to Security of Tenure — Officers and employees
in the civil service, including those appointed to policy
A: The powers and duties of public officers are, in general: determination, primarily confidential and highly technical
positions, enjoy security of tenure and may not be removed
1. Ministerial — A ministerial act has been defined as one except for a valid cause and after due notice and hearing.
which a person performs on a given statement of facts, With regard to primarily confidential employees, their
and in a prescribed manner, in obedience to the mandate term of office expires when the appointing authority
of legal authority, without regard to, or the exercise of, loses trust in the employee given that they serve at the
his own judgment upon the propriety or impropriety of confidence of the appointing authority. When this happens,
the act done. the confidential employee is not "removed" or "dismissed"
2. Discretionary — Discretionary or judicial duties are those from office; his term merely "expires" and the loss of
which necessarily require the exercise of reason in the trust and confidence is the "just cause" provided by law
adaptation of means to an end, and discretion in that results in the termination of employment."'
determining how or whether the act shall be done, or the 4. Right to Self-Organization — All government employees
course pursued.92° can form, join or assist employees' organizations of their

917 Kilusang &quit v. Dominguez, G.R. No. 85439, 13 January 1992. 921 Paredes v. Abad, G.R. Nos. L-36927-28, L-37715 & L-38331, 15 April 1974.
918 Carpi° v Executive Secretary, G.R. No. 96409, 14 February 1992. 922 De Rama v. Court ofAppeals, G.R. No. 131136, 28 February 2001.
919 Angeles v. Gaite, G.R. No. 165276, 25 November 2009. 923 Director ofBureau ofPrinting v. Francisco, G.R. No. L-31337, 20 December 1973.
92° FloydR. Mechem, A Treatise on the Law of Public Offices and Officers, 345. 924 Province of Camarines Norte v. Gonzales, G.R. No. 185740, 23 July 2013.
 384 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 385
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own choosing for the furtherance and protection of their his right to security of tenure. The mere fact that a position
interests. They can also form, in conjunction with appropriate belongs to a Career Service does not automatically confer security
government authorities, labor-management committees, of tenure on its occupant even if he does not possess the required
works councils and other forms of workers' participation qualifications. A person who does not have the requisite
schemes to achieve the same objectives.' The right to qualifications for the position cannot be appointed to it in the
self-organization of government employees however first place or, only as an exception to the rule, may be appointed
does not carry with it the right to engage in any form of to it merely in an acting capacity in the absence of appropriate
prohibited concerted mass action resulting in work stoppage eligibles. The appointment extended to him cannot be regarded
or disruption of public service. as permanent even if it may be so designated.
5. Right to Vacation and Sick Leaves — Government Q: On 20 March 2012, the Clark Development Corporation
officers and employees are entitled to the commutation (CDC), the operating arm of the Bases Conversion Development
of all leave credits without limitation and regardless of Authority (BCDA), tasked to manage the Clark Special
the period when the credits were earned. Economic Zone, executed a renegotiated collective bargaining
agreement (CBA) with its supervisory employees union
6. Right to Retirement Pay — It is given to government
Association of CDC Supervisory Personnel (ACSP). On the
employees to reward them for giving the best years of
other hand, the Governance Commission for Government-
their lives in the service of their country.' Retirement
Owned and -Controlled Corporations (GCG) opined that the
laws are liberally construed in favor of the retiree.'
CBA violated the moratorium on increases in the salaries,
Q: X, who is not a Career Executive Service Officer (CESO) allowances, incentives and other benefits in Government-
or a member of the Career Executive Service, was appointed Owned and -Controlled Corporations (GOCCs) unless
as "Ministry Legal Counsel-CESO IV in the Ministry of specifically authorized by the President. ACSP filed a
Local Government". The issuance of Department Order No. complaint against CDC before the National Conciliation and
94-370 effectively transferred him to Region XL X contends Mediation Board which ruled in favor of ACSP. CDC filed a
that his "transfer" changes his appointment from permanent petition for review arguing that the CBA's economic terms
to temporary and violates his constitutional right to security were invalid and cannot be enforced because they were
of tenure. Is the contention of X correct? renegotiated without the President's approval and the GCG
and BCDA's favorable recommendations. Is the argument of
A: No, X is incorrect. The Supreme Court in De Leon v. Court CDC correct?
of Appeals928 held that he cannot be appointed to a permanent
capacity since he does not possess the necessary qualifications. A: Yes, the argument of CDC is correct. It is settled that "the
When the appointment is merely temporary, the appointee could right of government employees to self-organization is not as
be transferred or reassigned to other positions without violating extensive as in the [right] of private [employees.]" Likewise, the
right of government employees to collective bargaining and
negotiation is subject to limitations. Only the terms and conditions
925 Executive Order No. 180, series of 1987, Sec. 2.
of government employment not fixed by law can be negotiated.
926 GSIS v. Civil Service Commission, G.R. Nos. 98395-102449, 19 June 1995. Notably, EO No. 7, Series of 2010, directed the rationalization of
927 Profela v. Drilon, G.R. No. 104139, 22 December 1992. the compensation and position classification system in all GOCCs,
928 G.R. No. 127182, 22 January 2001.
 386 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 387
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and imposed a "[m]oratorium on increases in the rates of salaries, the kind or nature of the appointment extended by the appointing
and the grant of new increases in the rates of allowances, officer. When the appointee is qualified, as in this case, the
incentives and other benefits. The prohibition is broadly worded Commissioner of Civil Service has no choice but to attest to the
and reveals the clear stance to halt the grant of additional salaries appointment. Under the Civil Service Law, Presidential Decree
and allowances to GOCCs' employees and officers. Again, the No. 807, the Commissioner is not authorized to curtail the
law requires the President's consent as to additional benefits discretion of the appointing official on the nature or kind of the
effectively lifting the moratorium, and any presumption of such appointment to be extended.t931
approval is unwarranted.929
The CSC has no authority to revoke an appointment simply
B. Civil Service; Scope, Appointments, Personnel Actions, because it believed that another person is better qualified than
and Removal
• the appointee for it would constitute an encroachment on the
discretion solely vested on the appointing authority. The
Q: What does the civil service cover? situation is different, as in the instant case, where the Civil
Service Commission revoked the appointment of the successful
A: The civil service embraces all branches, subdivisions,
protestant, petitioner herein, principally because the right to
agencies of the Government including gov
security of tenure of the prior appointee to the contested position
ernment-owned and -controlled corporations with original had already attached. It must be noted that CSC did not direct the
charters. appointment of a substitute of its choice. It merely restored the
appointment of prior appointee who was first appointed to the
Q: What is the Civil Service Commission (CSC)'s scope of contested position.937
authority as regards the appointment of a public officer?
Q: What is/are the basis for appointments in the civil service?
A: The CSC is not empowered to determine the kind or nature
of the appointment extended by the appointing officer, its A: Appointments in the civil service shall be made only according
authority being limited to approving or reviewing the appointment to merit and fitness to be determined, as far as practicable, and,
in the light of the requirements of the Civil Service Law. When except to positions which are policy-determining, primarily
the appointee is qualified and all the other legal requirements are confidential, or highly technical, by competitive examination.
satisfied, the Commission has no choice but to attest to the
appointment in accordance with the Civil Service Laws. As Q: What is the primary function of the CSC?
Justice Ramon C. Fernandez declared in the case of In Re: Elvira A: The primary function of the CSC is to ensure that all
C. Arcega', "It is well settled that the determination of the kind appointments and other personnel actions in the civil service
of appointment to be extended lies in the official vested by law should be based on merit and fitness and should never depend on
with the appointing power and not the Civil Service Commission. how intimate an appointee is to the appointing power. The CSC
The Commissioner of Civil Service is not empowered to determine has the authority and jurisdiction to investigate anomalies and

929 Clark Development Corp. v. Association of CDC Supervisory Personnel Union, 931 Luego v. Civil Service Commission, G.R. No. L-69137, 05 August 1986, 227
G.R. No. 207853, 30 March 2022. PHIL 303-310.
93° A.M. No. 2993-CFI (Resolution), 10 April 1979. 932 Aquino v. Civil Service Commission, G.R. No. 92403, 22 April 1992.
 388 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 389
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irregularities in the civil service examinations and to impose the therefrom, may be reinstated to a position in the same
necessary and appropriate sanctions.933 level for which he is qualified.
The CSC is not empowered to determine the kind or nature of 5. Re-employment - Names of persons who have been
the appointment extended by the appointing officer, its authority appointed permanently to positions in the career service
being limited to approving or reviewing the appointment in the and who have been separated as a result of reduction in
light of the requirements of the Civil Service Law. When the force and/or reorganization, shall be entered in a list
appointee is qualified and the other legal requirements are from which selection for reemployment shall be made.
satisfied, the Commission has no choice but to attest to the
appointment in accordance with the Civil Service Laws.' 6. Detail - The movement of an employee from one agency
to another without the issuance of an appointment which
Q: What are the kinds of personnel action? Briefly discuss each. shall be allowed, only for a limited period in the case of
employees occupying professional, technical and scientific
A: The following are the kinds of personnel action under the positions. If the employee believes that there is no
CSC rules: justification for the detail, he may appeal his case to the
1. Appointment through certification - Issued to a person CSC. Pending appeal, the decision to detail the employee
who has been selected from a list of qualified persons shall be executory unless otherwise ordered by the CSC.
certified by the CSC from an appropriate register of 7. Reassignment - An employee may be reassigned from
eligibles, and who meets all the other requirements of one organizational unit to another in the same agency;
the position. provided, that such reassignment shall not involve a
2. Promotion - A movement from one position to another reduction in rank, status or salary.
with an increase in duties and responsibilities as authorized
Q: What are the modes of acquiring title to public office?
by law and usually accompanied by an increase in pay.
The movement may be from one department or agency A: Public office can be acquired:
to another, or from one organizational unit to another in
1. By Election - when an officer occupies the office by
the same department or agency.
virtue of the mandate of the electorate. They are elected
3. Transfer - A movement from one position to another for a definite term and may be removed therefrom only
which is of equivalent rank, level, or salary without break upon stringent conditions.'
in service involving the issuance of an appointment.
2. By Appointment - the act of designation by the
4. Reinstatement - Any person who has been permanently executive officer, board, or body to whom that power
appointed to a position in the career service and who has, has been delegated, of the individual who is to exercise
through no delinquency or misconduct, been separated the powers and functions of a given office."

933 San Felix v. Civil Service Commission, G.R. No. 198404, 14 October 2019. 935 Farfflas v. Executive Secretary, G.R. No. 147387, 10 December 2003.
934 Luego v.Civil Service Commission, G.R. No. L-69137, 05 August 1986. 936 Appari v. Court of Appeals, G.R. No. L-30057, 31 January 1984.
 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 391
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Q: What is the nature of an appointment? 1. Authority to appoint and evidence of the exercise of the
A: Appointment is an essentially discretionary power and authority;
must
be performed by the officer in which it is vested according to
his 2. Transmittal of the appointment paper and evidence of
best lights, the only condition being that the appointee the transmittal;
should
possess the qualifications required by law. If he does, then
the
appointment cannot be faulted on the ground that there are 3. A vacant position at the time of appointment; and
others
better qualified who should have been preferred. This is a political
4. Receipt of the appointment paper and acceptance of the
question involving considerations of wisdom which only the
appointment by the appointee who possesses all the
appointing authority can decide.937
qualifications and none of the disqualifications.
Q: What is the nature of the power to appoint? The concurrence of all these elements should always apply,
•
A: The power to appoint is essentially executive in nature, and regardless of when the appointment is made, whether outside,
the legislature may not interfere with the exercise of this power just before, or during the appointment ban. These steps in the
except in those instances when the Constitution expressly allows appointment process should always concur and operate as a
it to interfere. single process. There is no valid appointment if the process lacks
even one step.'
The scope of the legislature's interference in the power to appoint is
limited to prescribing the qualifications to an appointive office. Q: What are the kinds of appointments?
Congress cannot appoint a person to an office in the guise of
A: Appointments may be classified as follows:
prescribing qualifications. Neither may Congress impose on the
President the duty to appoint any particular person to an office. 1. As to security of tenure:
Limitations on the executive power to appoint are construed
strictly against the legislature. a. Permanent - It is issued to a person who meets all
the requirements for the positions to which he is
Although the Commission on Appointments is composed of being appointed, including the appropriate eligibility
members of Congress, the exercise of its powers is executive and prescribed, in accordance with the provisions of law,
not legislative. The Commission on Appointments does not rules, and standards promulgated in pursuance thereof.
legislate when it exercises its power to give or withhold consent
to presidential appointments.' b. Temporary - In the absence of appropriate eligibles
and it becomes necessary in the public interest to fill
Q: What are the requisites of a valid appointment? a vacancy, a temporary appointment shall be issued
to a person who meets all the requirements for the
A: The following elements should always concur in the making positions to which he is being appointed except the
of a valid appointment: appropriate civil service eligibility; provided, that
such temporary appointment shall not exceed twelve

937
Luego v. Civil Service Commission, G.R. No. L-69137, 05 August 1986.
938 Pimentel v. Ermita, G.R. No. 164978, 13 October 2005. 939 Velicaria-Garafil v. Office of the President, G.R. No. 203372, 16 June 2015.
 392 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 393
ON POLITICAL LAW

(12) months, but the appointee may be replaced sooner appointment was only temporary. As such what is required is a
if a qualified civil service eligible becomes available."' 943
new appointment, and not merely reinstatement.
2. As to when the appointment takes effect: Q: What is a by-passed appointee?
a. Regular — It is made by the President while the Congress A: A by-passed appointment is one that has not been finally
is in session and becomes effective after the nomination acted upon on the merits by the Commission on Appointments at
is confirmed by the Commission on Appointments the close of the session of Congress. There is no final decision
and continues until the end of the term.941 by the Commission on Appointments to give or withhold its
b. Ad Interim — It is made while Congress is not in session, consent to the appointment as required by the Constitution.
before confirmation by Commission on Appointments. Absent such decision, the President is free to renew the ad
It is immediately effective and ceases to be valid if interim appointment of a by-passed appointee.'
disapproved or bypassed by the Commission on
Q: Is an ad interim appointment the same as an acting appointment?
Appointments upon adjournment of Congress.
A: An ad interim appointment is different from an acting
Q: What is the effect if a permanent appointee accepts a appointment. An ad interim appointment is extended only during
position in a temporary capacity? a recess of Congress and are submitted to the Commission on
A: When a permanent appointee accepted a temporary appointment, Appointments for confirmation or rejection. Meanwhile, an acting
he was thereby effectively divested of security of tenure. A appointment is extended any time there is a vacancy and is not
temporary appointment does not give the appointee any definite submitted to the Commission on Appointments.
tenure of office but makes it dependent upon the pleasure of the The essence of an appointment in an acting capacity is its
appointing power. Thus, the matter of converting such a temporary temporary nature. It is a stop-gap measure intended to fill an
appointment to a permanent one is addressed to the sound office for a limited time until the appointment of a permanent
discretion of the appointing authority.' occupant to the office.' The President may appoint a person in
an acting capacity when there exists a vacancy or when the
Q: Does the subsequent acquisition by a temporary appointee
officer regularly appointed to the office is unable to perform his
of the appropriate civil service eligibility convert the appointment
duties by reason of illness, absence, or any other cause.
into a permanent one?
A: The fact that the appointee subsequently obtained the Q: What are the differences between eligibility and qualification?
appropriate civil service eligibility is of no moment as at the time A: Eligibility is the state or quality of being legally fitted or
he received his appointment he had no eligibility. Hence, his qualified to be chosen. Eligibility to a public office is of a continuing

949 Revised Administrative Code, Book V, Title I, Subtitle A, Chapter 5, Sec. 27. 913 Maturan v. Maglana, G.R. No. 52091, 29 March 1982.
941 General v. tiff°, G.R. No. 191560, 29 March 2011. 9'14Matibag v. Benipayo, G.R. No. 149036, 02 April 2002.
942 Romualdez v, Civil Service Commission, G.R. Nos. 94878-94881, 15 May 1991. 945 Pimentel, Jr. v. Ermita, G.R. No. 164978, 13 October 2005.
 394 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 395
ON POLITICAL LAW

nature and must exist both at the commencement and during the by the Constitution itself, unless the Constitution expressly or
occupancy of an office."' impliedly gives the power to set qualifications.
On the other hand, qualification standards refer to the minimum Q: What are the rules with regard to the appointment of the
and basic requirements for positions in the government in terms Constitutional Commission members?
of education, training, experience, civil service eligibility, physical
fitness and other qualities required for successful performance of A: The following are the rules with regard to the appointment of
the duties of the position. These shall serve as the basic guide in the Constitutional Commission members:
the selection of the employees and in the evaluation of appointments 1. The appointment of members of any of the three
to all positions in the government.' constitutional commissions, after the expiration of the
uneven terms of office of the first set of commissioners,
Q: What are the powers of Congress in prescribing qualifications?
shall always be for a fixed term of seven (7) years; an
A: Flowing from the legislative power to create public offices is appointment for a lesser period is void and unconstitutional.
the power to abolish and modify them to meet the demands of
society; the Congress can change the qualifications for and The appointing authority cannot validly shorten the full
shorten the term of existing statutory offices. When done in good term of seven (7) years in case of the expiration of the
faith, these acts would not violate a public officer's security of term as this will result in the distortion of the rotational
tenure, even if they result in his removal from office or the system prescribed by the Constitution.
shortening of his term. Modifications in public office, such as 2. Appointments to vacancies resulting from certain causes
changes in qualifications or shortening of its tenure, are made in (death, resignation, disability or impeachment) shall only
good faith so long as they are aimed at the office and not at the be for the unexpired portion of the term of the predecessor,
incumbent.'" but such appointments cannot be less than the unexpired
portion as this will likewise disrupt the staggering of
Q: What is the rule as regards the power of Congress in terms laid down under Sec. 1(2), Art. IX (D) of the
prescribing qualifications for constitutional offices? Constitution.
A: The general rule is that where the Constitution establishes 3. Members of the Commissions, who were appointed for a
specific eligibility requirements for a particular constitutional office, full term of seven years and who served the entire period,
the constitutional criteria are exclusive. Thus, Congress may have are barred from reappointment to the same position in
no power to require different qualifications for constitutional the same Commission. Corollarily, the first appointees in
offices other than those qualifications specifically set out in the the Commission under the Constitution are also covered
Constitution. This is especially true in regard to offices created by the prohibition against reappointment.
4. A commissioner who resigns after serving in the
Commission for less than seven years is eligible for an
946 Aglaia v. Genato, G.R. No. L-55151, 17 March 1981. appointment to the position of Chairman for the unexpired
947 Section 31, Rule VIII, 2017 Omnibus Rules on Appointments and Other Human portion of the term of the departing chairman. Such
Resource Actions. appointment is not covered by the ban on reappointment,
948 Lagman v. Ochoa, Jr, G.R Nos. 197422 & 197950, 03 November 2020.
 396 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 397
ON POLITICAL LAW

provided that the aggregate period of the length of else. It is required that he be a registered voter but the
service as commissioner and the unexpired period of the law does not require that he actually vote.'
term of the predecessor will not exceed seven (7) years
and provided further that the vacancy in the position of 4. Residence and Domicile - The term "residence" and
Chairman resulted from death, resignation, disability or "domicile" are held to be synonymous.952 Nonetheless,
removal by impeachment. The Court clarifies that domicile requires that there be animus manendi or the
"reappointment" found in Sec. 1(2), Art. IX (D) means a intention of returning or residing in a place permanently
movement to one and the same office (Commissioner to and animus nonrevertendi or the intention not to go back
Commissioner or Chairman to Chairman). On the other to the former place. On the other hand, residence only
hand, an appointment involving a movement to a different requires physical presence in a given area, community,
position or office (Commissioner to Chairman) would or country.
constitute a new appointment and, hence, not, in the strict 5. Education — This refers to the formal or non-formal
legal sense, a reappointment barred under the Constitution. academic, technical, or vocational studies that will
5. Any member of the Commission cannot be appointed or enable a candidate to successfully perform the duties and
designated in a temporary or acting capacity.949 responsibilities required for the position to be filled.953

Q: What are the general qualifications required of public officers? 6. Ability to Read and Write — The constitution as well as
several statutes require that certain public officers are
A: The general qualifications required of public officers are able to read and write."
as follows:
7. Political Affiliation - Under Sections 17 and 18, Article
1. Citizenship - Aliens are not generally eligible to public VI of the Constitution, some of the members of the
office unless the privilege is extended to them by statute. Senate and House of Representatives Electoral Tribunals
and the Commission on Appointments shall be chosen on
2. Age - There are specific age requirements for certain
the basis of proportional representation from the political
public offices which are prescribed by the constitutional
parties and the parties or organizations registered under
or statutory provisions.'
the party-list system represented therein.
3. Right of Suffrage - Being a voter is a distinct qualification
8. Civil Service Examination - The Civil Service Law
from citizenship, even if being a voter presumes being a requires an appropriate examination for appointment to
citizen first. The voter requirement was included as another positions in the first and second levels in the career
qualification not to reiterate the need for nationality but service to ensure that such appointment is made only
to require that the official be registered as a voter in the
area or territory he seeks to govern, and not anywhere

9'I
Frivaldo v. COMELEC, G.R. No. 120295, 28 June 1996.
952 Romualdez v. C0MELEC, G.R. No. 119976, 18 September 1995.
949Funa v. Villar, G.R. No. 192791, 24 April 2012. 953 Section 42, Rule VIII, 2017 Omnibus Rules on Appointments and Other Human
959CONST., Article VI, Secs. 3 and 6; Article VII, Sec. 2; Article VIII, Sec.7; Resource Actions.
Article IX-B, Sec. 1.1; Article IX-C, Sec. 1.1; and Article IX-D, Sec. 1.1. 954 CONST., Sections 3 and 6, Article VI and Section 2, Article VII.
 398 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 399
ON POLITICAL LAW

according to merit and fitness to perform the duties and Q: When must a local elective official possess the required
assume the responsibilities of the positions.' qualification of citizenship?
Q: Who are authorized to administer the oath of office of a A: With respect to elective public office, Section 39 of the
government official? Local Government Code (LGC) speaks of "qualifications" of
"elective officials", not of candidates. Thus, such qualifications,
A: The following officers have general authority to administer unless otherwise expressly provided, should be possessed when
oaths: President; Vice President; Members and Secretaries of
the elective or elected official begins to govern (i.e. at the time
both Houses of Congress; Members of the Judiciary; Secretaries
he is proclaimed and at the start of his term). The citizenship
of Departments; provincial governors and lieutenant-governors; requirement, not being expressly qualified as stated in the LGC,
city mayors; municipal mayors; bureau directors; regional directors;
is to be possessed by an elective official at the latest as of the
clerks of courts; registrars of deeds; other civilian officers in the time he is proclaimed.°57
public service of the government of the Philippines whose
appointments are vested in the President and are subject to Q: Who are natural-born citizens?
confirmation by the Commission on Appointments; all other
constitutional officers; and notaries public. Similarly, a punong A: Natural-born citizens are those: (1) citizens of the Philippines
barangay is authorized to administer the oath of office of any from birth without having to perform any act to acquire or perfect
government official including the President of the Philippines. his Philippine citizenship; or (2) those born before January 17,
1973, of Filipino mothers, who elect Philippine citizenship upon
Q: X, a non-Filipino citizen won during the last local election. reaching the age of majority.958
He claims his election restored his Philippine citizenship. Is
his argument valid? A citizen who is a natural-born before he lost his citizenship will
be restored to his former status as a natural-born when he
A: An election of a non-Filipino citizen into public office does reacquires his Filipino citizenship by naturalization, repatriation,
not automatically restore his Philippine citizenship. Public office or direct act of Congress. Only naturalized Filipino citizens are
and employment are limited only to the citizens of the Philippines. not considered natural-born citizens.959 Nonetheless, a mere
The qualifications prescribed for elective office cannot be erased application for repatriation, which is not yet acted upon, does
by the electorate alone, especially if the voters mistakenly not, and cannot amount, to an automatic reacquisition of the
believed that the candidate was qualified. The purpose of the applicant's Philippine citizenship.96°
citizenship qualification is to ensure that no alien or no person
owing allegiance to another nation shall govern our people and Q: A public employee was appointed without having passed
our country or a unit of territory thereof.' the required civil service eligibility exam. He later on
obtained his civil service eligibility and now claims that he is
a permanent employee. Is his claim correct?

9'7 Frivaldo v. COMELEC, G.R. No. 120295, 28 June 1996.

958 CONST., Art. IV, Sec. 2.
955 P.D. No. 807, Sec. 19(7). 959 Bengson III v. HRET, G.R. No. 142840, 07 May 2001.
" 6 Labo v. COMELEC, G.R. No. 105111, 03 July 1992. 960 Labo v. COMELEC, G.R. No. 105111, 03 July 1992.
400 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 401
ON POLITICAL LAW

A: No. In Province of Camarines Sur v. Court of Appeals,961 the 'Senators 1. Natural-born citizen of the Philippines
Supreme Court explained that when the appointed public
employee had not yet qualified in an appropriate examination for 2. At least 35 years old on the day of the
the position, his appointment is merely temporary and without a election
fixed and definite term and is dependent entirely upon the 3. Able to read and write
pleasure of the appointing power. The fact that he obtained civil
service eligibility at a later date is of no moment as his having 4. Registered voter
passed the required examination did not ipso facto convert his
temporary appointment into a permanent one. What is required is 5. Resident of the Philippines for not less
than two years immediately preceding
a new appointment since a permanent appointment is not a
the day of the election
continuation of the temporary appointment — these are two distinct
acts of the appointing authority. The Civil Service Commission Members of 1. Natural-born citizen of the Philippines
did not have the authority to change the employment status of the House of
the employee. Representatives 2. At least 25 years old on the day of the
election
Q: What are the qualifications prescribed by the Constitution
and other relevant laws for certain officials? 3. Able to read and write

A: Below is a table summarizing the officials and their 4. A registered voter in the district in
qualifications as prescribed by the Constitution: which he shall be elected*

Official Qualifications 5. A resident in the district in which he

shall be elected for not less than one
President and 1. Natural-born citizen of the Philippines year immediately preceding the day of
Vice- President the election*
2. Registered voter
*Not applicable to party-list representatives
3. Able to read and write
Members of the 1. Natural-born citizen of the Philippines
4. At least 40 years of age on the day of Supreme Court
the election and lower 2. At least 40 years of age
5. Resident of the Philippines for at least collegiate 3. Must have been for 15 years or more a
10 years immediately preceding the courts judge of a lower court or engaged in
day of the election the practice of law in the Philippines
4. Must be a person of proven competence,
integrity, probity, and independence
5. Shall be appointed by the President
from a list of at least three nominees
961 G.R. No. 104639, 14 July 1995.
402 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 403
ON POLITICAL LAW

prepared by the Judicial and Bar _ with the consent of the Commission on
Council (JBC) for every vacancy. Such Appointments
appointment does not need confirmation.
7. Shall not be appointed or designated in
Chairman and 1. Natural-born citizens of the Philippines a temporary or acting capacity
Commissioners
of the Civil 2. At least 35 years old at the time of their Chairman and 1. Natural-born citizens of the Philippines
Service appointment Commissioners
2. At least 35 years of age at the time of
3. With proven capacity for public of the
Commission on their appointment
administration
Audit 3. Certified Public Accountants, with not
4. Must not have been candidates for any less than 10 years of auditing
elective position in the elections experience or members of the
immediately preceding their Philippine Bar who have been engaged
appointment in the practice of law for at least 10 years
5. Shall be appointed by the President 4. Must not have been candidates for any
with the consent of the Commission on elective positions in the elections
Appointments immediately preceding their
appointment
6. Shall not be appointed or designated in
a temporary or acting capacity 5. At no time shall all Members of the
Commission belong to the same
Chairman and 1. Natural-born citizens of the Philippines profession
Commissioners
of the 2. At least 35 years of age at the time of 6. Shall be appointed by the President
Commission on their appointment with the consent of the Commission on
Elections 3. Holders of a college degree Appointments
(COMELEC)
4. Must not have been candidates for any Chairman and 1. Natural-born citizens of the Philippines
elective position in the elections members of the
Commission on 2. At least 35 years old at the time of their
immediately preceding their appointment
appointment Human Rights
(CHR) 3. Majority of whom shall be members of
5. A majority, including the Chairman,
the Bar
shall be members of the Philippine Bar
and have been engaged in the practice 4. Must not have been candidates for any
of law for at least 10 years elective position in the elections
immediately preceding their appointment
6. Shall be appointed by the President
404 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 405
ON POLITICAL LAW

Ombudsman 1. Natural-born citizens of the Philippines Metropolitan 3. Must have been engaged in the practice
and his Trial Court of law in the Philippines for at least 5
Deputies 2. At least 40 years old at the time of their (MeTC), years or has held a public office in the
appointment Municipal Philippines requiring admission to the
3. Of recognized probity and Circuit Trial practice of law as an indispensable
independence Court (MCTC) requisite.
Judges
4. Members of the Philippine Bar
5. Must not have been candidates for any Q: A law required all candidates for national and local
elective position in the elections elective offices to be college degree holders. Is the law
immediately preceding their constitutional?"'
appointment
A: The law requiring all candidates for national or local elective
6. The Ombudsman must have for 10 offices to be college degree holders is unconstitutional with
years or more been a judge or engaged respect to national elective offices. This is because it is not one
in the practice of law in the Philippines of the qualifications specifically required for these offices. The
Supreme Court held in Social Justice Society v. Dangerous
7. Shall be appointed by the President Drugs Board963 that the qualifications for these positions under
from the list of nominees prepared by the Constitution are exclusive in character and the Congress would
the JBC. Such appointment does not be incompetent to prescribe this requirement as an additional
need confirmation. qualification for candidates for national elective office. This
Secretaries of 1. Citizens of the Philippines additional requirement would, however, be valid with respect to
Departments candidates for local elective posts since unlike for national elective
2. Not less than 25 years of age positions, the Constitution does not delimit the qualifications for
local elective positions. The qualifications for local elective
3. Shall be appointed by the President officials are prescribed under the Local Government Code which
with the consent of the Commission on the Congress has the legislative power to amend. The Congress
Appointments may likewise promulgate new laws that will provide additional
Regional Trial 1. Natural-born citizens of the Philippines qualifications for such public officers.
Court (RTC) By way of exception, the Court in the case of Albano v.
Judges 2. At least 35 years of age
Commission on Elections,964 held that Section 5(1), Article VI of
3. Has been engaged in the practice of law the Constitution reveals the clear intent of the framers to delegate
in the Philippines for at least 10 years to Congress, who is in the best position to draft, study, and enact
Municipal 1. Natural-born citizens of the Philippines
Trial Court 962 BAR 2018.
(MTC), 2. At least 30 years of age 963 G.R. No. 157870, 03 November 2008.
964 G.R. No. 257610 & UDK No. 17230, 24 January 2023.
 406 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 407
ON POLITICAL LAW

all the details regarding the implementation of the party-list and shall be disqualified to be a candidate and to hold
system, including the qualifications of those who seek such any office. As regards physical incapacity, it may permanently
positions. Hence, nothing appears to be constitutionally repugnant bar a person from returning to the workforce due to
with R.A. No. 7941, a statute which prescribes the qualifications serious physical impediments and permanent disability,
of party-list nominees, among others, insofar as it embodies the whether total or partial.968
objective of the Constitution to accord Congress imprimatur to
sculpt legislation establishing the mechanics of the party-list 2. Misconduct or Crime — Similarly, the Omnibus Election
system, and with it, the qualifications of party-list representatives Code and the Local Government Code provide that
and the conduct for their nominations. persons who have been sentenced by final judgment for
certain crimes or for a crime involving moral turpitude
Q: The President appointed as Deputy Ombudsman a lawyer shall be disqualified to be a candidate and to hold any
who has been engaged in the practice of law for five (5) office, unless he has been given plenary pardon or granted
years. Is the appointment valid?965 amnesty. In case of pardon, the same does not ipso facto
restore a convicted felon to public office necessarily
A: The appointment can be upheld. It is only the Ombudsman relinquished or forfeited by reason of the conviction. A
that is required under the Section 8, Article XI of the Constitution to pardon restores not the position held by a public employee
have been engaged in the practice of law for at least ten (10) prior to being convicted, but such an employee's eligibility
years prior to his appointment. for appointment to that office. Thus, he/she may apply
for reappointment to the office forfeited.'
Q: The national party-list nominates a person who is not one
of its bona fide members. Is the nomination valid?"' 3. Impeachment - An impeached official may be disqualified
from holding any office under the Republic of the Philippines.
A: The nomination is invalid. As held by the Supreme Court in
Atong Paglaum v. Commission on Elections,967 nominees of national 4. Removal or Suspension from Office — In certain cases,
parties must be bona fide members of such parties. the penalty of removal or suspension carries with it the
accessory penalty of disqualification from holding public
Q: What are the causes for disqualification to hold public office? office. For example, in the case of Dimapilis v. Commission
A: The disqualification to hold public office may arise from a on Elections,97° petitioner therein had been found guilty
variety of causes such as: of Grave Misconduct by a final judgment and punished
with dismissal from service with all its accessory penalties,
1. Mental or Physical Incapacity — Under the Section 12 including perpetual disqualification from holding public
of the Omnibus Election Code and Section 40 of the office. Verily, perpetual disqualification to hold public
Local Government Code, any person who has been office is a material fact involving eligibility which
declared by competent authority insane or incompetent rendered petitioner's Certificate of Candidacy void from

968 Re: Letter of Mrs. Ma. Cristina Roco Corona, A.M. No. 20-07-10-SC, 12
965
BAR 2018. January 2021.
966 BAR 2018. 969 Monsanto v. Factoran, G.R. No. 78239, 09 February 1989.
967 G.R. No. 203766, 02 April 2013. 970 G.R. No. 227158, 18 April 2017.
408 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 409
ON POLITICAL LAW

the start since he was not eligible to run for any public government-owned or -controlled corporations or their
office at the time he filed the same. subsidiaries.
5. Previous Tenure of Office - A person who has been Senators or Members of the House of Representatives may
elected to and has held the office of President is not hold any office or employment in the government, or
absolutely disqualified for any re-election regardless of any subdivision, agency, or instrumentality thereof,
the length of time he has served as such. A person who including government-owned or -controlled corporations
has succeeded as President is disqualified only if he has or their subsidiaries during their term without forfeiting
served as such for more than four years. their seat. Note that in the case of Liban v. Gordon,971
the Supreme Court held that the Philippine National Red
Chairman and Commissioners of the Civil Service Cross (PNRC) is not a government office and as such,
Commission, COMELEC, and Commission on Audit, the election of Senator Gordon as Chairman of the PNRC,
and the Ombudsman and his Deputies are appointed by
at the same time as he was seating as Senator, does not
the President without reappointment. The Ombudsman and
violate Article VI, Section 13 of the Constitution.
his Deputies are disqualified to run for any office in the
election immediately succeeding their cessation from office. Members of the Supreme Court and of other courts
established by law shall not be designated to any agency
6. Consecutive Terms - The Vice-President shall not serve
performing quasi-judicial or administrative functions. As
for more than two (2) successive terms. A Senator shall
an exception to this rule, members of the Supreme Court
not serve for more than two (2) consecutive terms while
can be designated to the Presidential, Senate, and/or
members of the House of Representatives shall not serve
House of Representatives Electoral Tribunal.
for more than three (3) consecutive terms. Except for
barangay officials, local elective officials shall likewise Other appointive officials are likewise prohibited from
not serve for more than three (3) consecutive terms. For holding any other office or employment in the Government
the foregoing positions, voluntary renunciation of the or any subdivision, agency or instrumentality thereof,
office for any length of time shall not be considered as including government-owned or -controlled corporations
an interruption in the continuity of the service for the full or their subsidiaries, unless otherwise allowed by law or
term for which he was elected. required by the primary functions of their positions.
7. Holding More Than One Office - For the President, 8. Relationship with the Appointing Power - The spouse
Vice-President, the Members of the Cabinet, and their and relatives by consanguinity or affinity within the fourth
deputies or assistants, they shall not, unless otherwise civil degree of the President shall not, during his tenure,
provided in the Constitution, hold any other office or be appointed as: (1) members of the Constitutional
employment during their tenure. Also, they shall not, Commissions, or the Office of the Ombudsman; (2)
during said tenure, directly or indirectly, practice any other secretaries, undersecretaries, chairmen or heads of bureaus
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 97I
G.R. No. 175352, 18 January 2011.
 410 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 411
ON POLITICAL LAW

of offices, including government-owned or -controlled 12. Causes Under the Local Government Code - The
corporations and their subsidiaries. following are disqualified from running for any elective
local position:
All appointments in the national, provincial, city, and
municipal governments or in any branch or instrumentality a. Those sentenced by final judgment for an offense
thereof, including government-owned or -controlled involving moral turpitude or for an offense punishable
corporations, made in favor of a relative within the third by one (1) year or more of imprisonment, within two
degree either of consanguinity or affinity of the appointing (2) years after serving sentence;
or recommending authority, or of the chief of the bureau
of office, or of persons exercising immediate supervision b. Those removed from office as a result of an
over him, are prohibited. Nonetheless, the following are administrative case;
exempted from the operation of the rules on nepotism: c. Those convicted by final judgment for violating the
(1) persons employed in a confidential capacity; (2)
oath of allegiance to the Republic;
teachers; (3) physicians; and (4) members of the Armed
Forces of the Philippines. d. Those with dual citizenship;
9. Office Newly Created or the Emoluments of which e. Fugitive from justice in criminal or non-political
have been Increased - The Constitution prohibits the cases here or abroad;
appointment of a Senator or a Member of the House of
Representatives to any office which may have been f. Permanent residents in a foreign country or those
created or the emoluments thereof increased during the who have acquired the right to reside abroad and
term for which he was elected.972 continue to avail of the same right after the
effectivity of the LGC; and
10. Being an Elective Official - No elective official shall be
eligible for appointment or designation in any capacity g. The insane or feeble-minded.
to any public office or position during his tenure. He Furthermore, no elective or appointive local official shall
may only be appointed if he forfeits his seat. be eligible for appointment or designation in any capacity
11. Having been a Candidate for any Elective Position - to any public office or position during his tenure. Except
No candidate who has lost in any election shall, within one for losing candidates in barangay elections, no losing
year after such election, be appointed to any office in the candidate in any local election shall, within one (1) year
government or any government-owned or -controlled after such election, be appointed to any office in
corporations or their subsidiaries. Also, members of the government-owned or -controlled corporations or in any
Constitutional Commissions must not have been candidates of their subsidiaries.
for any elective position in the elections immediately
Q: Congress enacted Republic Act No. 7941, otherwise
preceding their appointment.
known as the "Party-List System Act", Section 8 of which
provides that a candidate for any elective office or a person
who has lost in the immediately preceding elections is
972 CONST., Art. VI, Sec. 13. disqualified from being included in the list of nominees for
 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 413
412
ON POLITICAL LAW

party-list representatives for the succeeding election. In platform for all marginalized sectors to participate in lawmaking.
relation to this, COMELEC issued Resolution No. 10717 The classification treating losing candidates in the immediately
which adopted the same disqualification. Mr. A filed a preceding election differently from other candidates does not
Petition for Certiorari arguing that Section 8 of Republic Act find any rational basis.
No. 7941 and the relevant provisions of COMELEC are
unconstitutional for being violative of the equal protection As a matter of course, Mr. A's Petition should be granted and the
clause. Rule on Mr. A's Petition. said disqualification under Section 8 of R.A. No. 7941, as well
as the relevant portions of COMELEC Resolution No. 10717,
A: Mr. A's petition should be granted. In the case of Albano v. should be struck down and declared unconstitutional.
Commission on Elections,9" the Supreme Court explained that
while it recognizes the power of Congress to prescribe the mechanics Q: Is the prohibition against dual or multiple offices absolute?
of the party-list system and to provide for qualifications of party-
A: No, the prohibition under Section 13, Article VII of the
list representatives by law, it must still yield to the general
Constitution does not apply to posts occupied by executive officials
limitations on legislation and the specific limitations on party-list
in an ex-officio capacity without additional compensation when it
organizations under the Constitution, particularly the equal
is provided by law or required by the primary functions of said
protection clause. The classification provided under R.A. No.
officials' office. These posts do not comprise "any other office"
7941 practically discriminates against candidates who, upon
within the contemplation of the constitutional prohibition but are
suffering a loss from the previous elections, is barred from
properly an imposition of additional duties and functions on
attempting to once again express his right to run for an elective
said officials.
office as the law precipitately adjudges him or her as having the
intention of taking advantage of the party-list system. Thus, the Note that in the case of Civil Liberties Union v. Executive
law haphazardly deprives losing candidates who have a genuine Secretary,974 the Supreme Court explained that Section 7, Article
stake in a party-list organization and its causes from representing IX-B of the Constitution is the general rule applicable to all
it as a nominee. Concomitantly, party-lists are effectually elective and appointive public officials and employees. Section
disenfranchised by the law for arbitrarily limiting its choices of 13, Article VII is meant to be the exception. In the latter, the
nominees, regardless of their intention for running. Jurisprudential disqualification is absolute, not being qualified by the phrase "in
standards for equal protection challenges indubitably show that the government." Thus, it is all-embracing and covers both public
the classification created by the questioned provisos, on its face and private office or employment.
and in its operation, bear constitutional infirmity. No substantial
distinction can be seen to exist between candidates who lost in Q: What does "Fugitive from Justice" as a ground for
the immediately preceding election on one hand, and those who disqualification cover?
won or did not participate therein, on the other. No unique
A: A "fugitive from justice" includes not only those who flee
circumstance exists that is attributable to losing candidates in the
after conviction to avoid punishment but likewise those who,
immediately preceding election which would result in subverting
after being charged, flee to avoid prosecution. "Intent to evade"
the objective of the party-list system to provide an effective
on the part of a candidate must therefore be established by proof

973 G.R. No. 257610 & UDK No. 17230, 24 January 2023. 974 G.R. No. 83896, 12 February 1991.
 414 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 415
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that there has already been a conviction or at least, a charge has way may be affected by the functions of his office, nor
already been filed, at the time of flight.' shall he be financially interested, directly or indirectly,
in any contract with, or in any franchise or privilege
Q: What are the other inhibitions of public officers under granted by the Government, or any of its subdivisions,
the Constitution? agencies, or instrumentalities, including government-
A: The following are the other inhibitions of public officers owned or -controlled corporations or their subsidiaries.
under the Constitution: 4. No officer or employee in the civil service shall engage,
1. The President, Vice-President, the Members of the directly or indirectly, in any electioneering or partisan
Cabinet, and their deputies or assistants shall not, during political campaign.
said tenure, directly or indirectly, practice any other 5. No loan, guaranty, or other form of financial accommodation
profession, participate in any business, or be financially for any business purpose may be granted, directly or
interested in any contract with, or in any franchise, or indirectly, by any government-owned or -controlled
special privilege granted by the Government or any bank or financial institution to the President, the Vice-
subdivision, agency, or instrumentality thereof, including President, the Members of the Cabinet, the Congress, the
•
government-owned or -controlled corporations or their Supreme Court, and the Constitutional Commissions, the
subsidiaries. They shall strictly avoid conflict of interest Ombudsman, or to any firm or entity in which they have
in the conduct of their office. controlling interest, during their tenure.
2. No Senator or Member of the House of Representatives
may personally appear as counsel before any court of Q: Professor Masipag who holds a plantilla or regular item
in the University of the Philippines (UP) is appointed as an
justice or before the Electoral Tribunals, or quasi-
Executive Assistant in the Court of Appeals. The professor is
judicial and other administrative bodies. Neither shall
he, directly or indirectly, be interested financially in any considered only on leave of absence in UP while he reports
for work at the Court of Appeals which shall pay him the
contract with, or in any franchise or special privilege
salary of the Executive Assistant. The appointment to the
granted by the Government, or any subdivision, agency,
Court of Appeals position was questioned, but Professor
or instrumentality thereof, including any government-
Masipag countered that he will not collect the salary for both
owned or -controlled corporation, or its subsidiary, during
positions; hence, he cannot be accused of receiving double
his term of office. He shall not intervene in any matter
compensation. Is the argument of the professor valid?976
before any office of the Government for his pecuniary
benefit or where he may be called upon to act on account A: Professor Masipag is correct in saying that "he cannot be
of his office. accused of receiving double compensation" as he would not actually
be receiving additional or double compensation. Nonetheless, he
3. No Member of a Constitutional Commission shall engage
may not be allowed to accept the position of Executive Assistant
in the practice of any profession or in the active
of the Court of Appeals during his incumbency as a regular
management or control of any business which in any

975 Rodriguez v. COMELEC, G.R. No. 120099, 24 July 1996. 676 BAR 2015.
416 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 417
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employee of the University of the Philippines. This is because a declaration under oath of his assets, liabilities, and net worth.977
the former position would be an incompatible office not allowed The declaration shall be disclosed to the public in the manner
to be concurrently held by him under the provisions of Article provided by law for the following public officers:
IX-B, Section 7 of the Constitution, the second paragraph of
which provides that "unless otherwise allowed by law or by the 1. President
primary functions of his position, no appointive official shall 2. Vice-President
hold any other office in the Government."
3. Members of the Cabinet
Q: What are the limitations as regards the practice of
profession of local elective officials under the LGC? 4. Members of Congress

A: Under the LGC, all governors, city and municipal mayors 5. Members of the Supreme Court
are prohibited from practicing their profession or engaging in 6. Members of the Constitutional Commissions and other
any occupation other than the exercise of their functions as local constitutional offices
chief executives.
7. Officers of the armed forces with general or flag rank.
Sanggunian members may practice their professions, engage in
any occupation, or teach in schools except during session hours; Q: Mr. J, a public employee, was dismissed for dishonesty
provided, that Sanggunian members who are also members of after failing to disclose real properties, motor vehicles,
the Bar shall not: (1) appear as counsel before any court in any business interests, and liabilities in his SALN. He pleaded for
civil case wherein a local government unit or any office, agency, reversal from the Supreme Court claiming good faith and
or instrumentality of the government is the adverse party; (2) deprivation of due process since he was never granted the
appear as counsel in any criminal case wherein an officer or opportunity to rectify his alleged omission or mistakes. Is
employee of the national or local government is accused of an Mr. J correct?
offense committed in relation to his office; (3) collect any fee for
their appearance in administrative proceedings involving the A: Yes, Mr. J is correct. The review and compliance procedure
local government unit of which he is an official; and (4) use the under Section 10 of Republic Act No. 6713 institutes a
property and personnel of the government except when the Sanggunian mechanism for review and rectification of errors with respect to:
member concerned is defending the interest of the government. (1) failure to submit SALNs on time; and (2) incomplete SALNs,
and (3) formally defective SALNs. The foregoing procedure is
Doctors of medicine may practice their profession even during mandatory; hence, any concerned public official or employee
official hours of work only on occasions of emergency; provided, that cannot be subjected to disciplinary action without having been
the officials concerned do not derive monetary compensation therefrom. granted a non-extendible period of 30 days to perform a corrective
action. Only in case of failure can such an official or employee
Q: Who are required to submit their Statement of Assets be held accountable. Accordingly, without compliance with the
and Liabilities (SALN)? foregoing procedure, no violation shall arise. Consequently, no
A: A public officer or employee shall, upon assumption of
office and as often thereafter as may be required by law, submit
977 C0NST., Art. XI, Sec. 18.
 418 COMPENDIOUS BAR REVIEWER 1 LAW ON PUBLIC OFFICERS 419
ON POLITICAL LAW

liability for failure to file, or for omissions or errors in SALNs 1. Expiration of Term - Upon the expiration of the
will be attached. In fact, it is the head of an office who omitted to officer's term, his rights, duties and authority as a public
comply with the foregoing mechanism who can be held accountable officer must ipso facto cease, unless he is authorized by
for simple neglect of duty.978 law to hold over.979
Q: Mr. X ran for Congress in the 2022 elections but lost to 2. Resignation - Refers to the act of giving up or the act of
Ms. Y. In January 2023, he was hired as a consultant of the a public officer by which he declines his office and
Department of Energy under a contract of service. Ms. y renounces the further right to use it. A complete and
contested the employment of Mr. X claiming that such was in operative resignation from public office must have the
violation of the constitutional prohibition that no candidate following elements: (1) a clear intention of the public
who has lost in any election shall, within one year after such officer to relinquish or surrender his position; (2) the act
election, be appointed to any office in the Government or any of relinquishment; and (3) the acceptance of resignation
government-owned or -controlled corporations or in any of by a competent and lawful authority.980 A public officer
their subsidiaries. Is the contention of Ms. Y correct? cannot abandon his office before his resignation is
accepted; otherwise, the officer is subject to the penal
A: No, Ms. Y's contention is incorrect. Section 1, Rule XI of provisions of Article 238 of the Revised Penal Code.
CSC Memorandum Circular (MC) No. 40-98, or the Revised
Omnibus Rules on Appointments and Other Personnel Actions, The Supreme Court in Estrada v. Desierto981 used the
expressly states that services rendered under contracts of service totality test in ruling that former President Joseph Estrada
are not considered government service. In contracts of services indeed resigned from presidency. The Court examined
and job orders, there exists no employer-employee relationship the totality of acts of Estrada and ascertained his state of
between the hiring agency and the persons hired and it should be mind through the diary of then Executive Secretary
made clear in their contracts that the services rendered thereunder Eduardo Angara, which was serialized in the Philippine
can never be accredited as a government service. As such, there Daily Inquirer.
was no violation of the constitutional prohibition given that Mr.
X was not appointed to any office in the Government or any 3. Abandonment - refers to the voluntary relinquishment
government-owned or -controlled corporations or in any of their of an office by the holder with the intention of
subsidiaries. terminating his possession and control thereof. In order
to constitute abandonment of office, it must be total and
Q: What are the modes of terminating the official relations under such circumstance as clearly to indicate an
of a public officer? absolute relinquishment.'

A: The following are the modes of terminating the official

relations of a public officer:

979 Appari v. Court of Appeals, G.R. No. L-30057, 31 January 1984.

989 Ortiz v. COMELEC, G.R. No. 78957, 28 June 1988.
981 G.R. No. 146710-15, 02 March 2001.
978Carlos v. Department of Finance Revenue Integrity Protection Service (DOE- 982 Civil Service Commission v. Yu, G.R. No. 189041, 31 July 2012.
RIPS) and Office of the Ombudsman, G.R. 225774, 18 April 2023.
 420 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 421
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In Canonizado v. Aguirre,983 the Supreme Court held rule is when there is no discharge of both functions by
that, while desiring and intending to hold the office, and the public officer.'
with no willful desire or intention to abandon it, the
public officer vacates it in deference to the requirements 5. Removal - refers to the forcible and permanent separation
of a statute which is afterwards declared unconstitutional, of the incumbent from office before the expiration of
such a surrender will not be deemed an abandonment his term.'
and the officer may recover the office. The removal of 6. Abolition of Office - An abolition of office connotes an
public officers from their positions by virtue of a intention to do away with such office wholly and
constitutionally infirm act necessarily negates a finding permanently. In order for an abolition of office to be
of voluntary relinquishment. valid, it must be made in good faith with a clear intent to
Any other employment that the dismissed employee do away with the office and not for political or personal
obtains while waiting for the court to rule on the propriety reasons. Furthemore, it should not.be implemented in a
of his dismissal should not be construed as an abandonment manner contrary to law. An abolition which is not bona
of his position. The employee had the right to live during fide but is merely a device to circumvent the constitutional
his appeal, which necessarily means that he can accept security of tenure of civil service employees is null
any form of employment. Applying for new employment and void.987
was not a choice but a necessity. A contrary ruling 7. Retirement - Unless the service is extended by appropriate
would deprive the employee of his right to live, which authorities, retirement shall be compulsory for an
contemplates not only a right to earn a living but also a employee of 65 years of age with at least fifteen (15)
right to lead a useful and productive life."' years of service; provided, that if he has less than fifteen
4. Acceptance of Incompatible Office - as a general rule, (15) years of service, he may be allowed to continue in
one who, while occupying one office, accepts another the service in accordance with existing civil service rules
office incompatible with the first, ipso facto vacates the and regulations.
first office and his title is thereby terminated without any Retirement benefits are exempt from attachment, levy
other act or proceeding. The incompatibility contemplated and execution, as well as unwarranted deductions. The
is not the mere physical impossibility of one person's retirement pay accruing to a public officer may not be
performing the duties of the two offices due to a lack of withheld and applied to his indebtedness to the government.
time or the inability to be in two places at the same The Supreme Court in the case of Government Service
moment, but that which proceeds from the nature and Insurance System (GSIS) v. Commissionon Audit988 held
relations of the two positions to each other as to give rise that disallowances by the Commission. on Audit cannot
to contrariety and antagonism should one person attempt
to faithfully and impartially discharge the duties of one
toward the incumbent of the other. The exception to this
986 Canonizado v. Aguirre, G.R. No. 133132, 25 January 2000.
986 Ingles v. Mutuc, G.R. No. L-20390, 29 November 1968.
987 Mendoza v. Quisumbing, G.R. Nos. 78053, 78525, 81197, 81495, 81928, 81998,
983 G.R. No. 133132, 25 January 2000. 86504, 86547, 88951, 89427, 04 June 1990.
984 Campol v. Balao-as, G.R. No. 197634, 28 November 2016. 988 G.R. No. 138381 & 141625, 10 November 2004.
422 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 423
ON POLITICAL LAW

be deducted from the retirement benefits under Republic ousted from his office. The period may be extended on
Act No. 8291, as the same are explicitly made exempt by grounds of equity, Otherwise, the action shall be barred.992
law from such deductions. The interpretationof Section
39 of Republic Act No. 8291 that Commission on Audit 12. Impeachment — Impeachment is a constitutional process
disallowances have become "monetary liabilities" of that takes place within the political departments of our
GSIS retirees to the GSIS and therefore fall under the government. The House of Representatives accuses and
exception stated in the law is wrong. the Senate, sitting as an Impeachment Court, decides.
Public opinion, as well as the facts established by the
8. Death or Permanent Disability - A public officer's evidence and the grounds and processes prescribed by
death or other permanent disability creates a vacancy in the basic law, steer and weigh heavily in the formulation
the office.989 In case of death, permanent disability, of its outcome. Nevertheless, the pervasive realm of the
removal from office, or resignation of the President, the courts that is judicial review is retained as to any act within
Vice-President shall become the President to serve the the limits of discretion provided bythe Constitution.993
unexpired term. In case of death, permanent disability,
removal from office, or resignation of both the President The grounds for impeachment are exclusive; namely,
and Vice-President, the President of the Senate or, in case culpable violation of the Constitution, treason, bribery,
of his inability, the Speaker of the House of Representatives, graft and corruption, other high crimes, or betrayal of
shall then act as President until the President or Vice- public trust. Congress cannot add to the list of impeachable
President shall have been elected and qualified.99° officers and offenses. Furthermore, the President cannot
pardon impeached officials.
9. Conviction of a Crime — In case of conviction of specific
crimes under the Revised Penal Code, the penalties of Impeachment is designed to remove the impeachable
perpetual or temporary absolute disqualification or penalties officer from office, not punish him. It is purely political,
of perpetual or temporary special disqualification provided and it is neither civil, criminal, nor administrative in nature.
under Sections 30 and 31 of the Revised Penal Code are No legally actionable liability attaches to the public officer
imposed to which termination of official relation results. by a mere judgment of impeachment against him or her,
and thus lies the necessity for a separate conviction for
10. Recall - Recall is a mode of removal of a public officer charges that must be properly filed with the courts of law.
by the people before the end of his term of office."'
A respondent in impeachment proceedings does not risk
11. Prescription of Right to Office - A petition for forfeiture of the constitutional rights to life, liberty, or
reinstatement after illegal ouster or dismissal or the property. A separate determination of liability under the
recovery of the public office must be instituted within courts of law is necessary to withhold .such rights. Sans
one (1) year from the date the petitioner is unlawfully judicial conviction, the impeached official shall only be

992 Cristobal v. Melchor, G.R. No. L-43203, 29 July 1977.

989 G.R. No. L-8684, 31 March 1955.
Republic v. Imperial, 993 160261-160263, 160277,
Francisco, Jr. v. House of Representatives, G.R. Nos.
990 CONST., Article VII, Sec. 8. 160292, 160295, 160310, 160318, 160342, 160343, 160360, 160362, 160370,
991 Garcia v. COMELEC, G.R. No. 11 1511, 05 October 1993. 160376, 160392, 160397, 160403 & 160405, 10 November 2003.
 424 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 425
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removed from office, with the Senate being empowered g. However, where the complaint itself was filed by 1/3
with the discretion to impose the additional penalty of of the Members of the House, there is no need to
permanent disqualification from holding any and all comply with the preceding steps. It shall constitute
further public office. the Articles of Impeachment.
Having been removed by the Congress from office with h. The Articles of Impeachment is transmitted to the
a lifetime ban from occupying any and all future public Senate and trial shall proceed forthwith.
posts, but without a proper determination of or even a
basis for any recoverable liability under the law due to i. Each Senator shall take an oath or affirmation before
causes beyond his control, Chief Justice Corona may be assuming their office as Senator-Judges;
considered involuntarily retired from public service. After the transmission and the organization of the
Following this as well as the principles of equity, he may Senate as an impeachment court, a writ of summons
still receive his retirement benefits."' shall be issued to the impeached officer directing him to:
The procedure for the impeachment of impeachable i. Appear before the Senate at a fixed date and
officers is as follows: place; and
a. A verified complaint is filed by a member of the ii. File an Answer to the Articles of Impeachment
House of Representatives or any citizen upon a within ten (10) days. The prosecutors may file a
resolution of endorsement by a House Member. Reply to the Answer within 5 days.
b. The complaint is included in the Order of Business k. The Senate sitting as an impeachment court shall be
within ten (10) session days. presided over by the Senate President. If the President
c. The complaint is referred to the Committee on is the one being impeached, it is the Chief Justice
Justice within three (3) session days thereafter. who shall preside. The presiding officer shall rule on
all questions of evidence, unless a Senator-Judge moves
d. The Committee, after hearing, and by a majority that all the senator-judges vote upon the question.
vote of all its Members, shall submit its report to the
House within sixty (60) session days from such 1. Upon the close of the trial, the Senator-Judges shall vote
referral, together with the corresponding resolution. on each of the Articles of Impeachment separately.

e. The resolution shall be calendared for consideration m. In order to result in a conviction, at least 2/3 of all
by the House within ten (10) days from receipt. the members of the Senate must concur in one article
of impeachment.
f. A 1/3 vote is necessary to affirm a favorable resolution
or override a contrary resolution of the committee. Note that no impeachment proceedings shall be initiated
against the same official more than once within a period
of one year. The term "to initiate" refers to the filing of
994Re: Letter of Mrs. Ma. Cristina Roco Corona, A.M. No. 20-07-10-SC, 12
January 2021.
426 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 427
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the impeachment complaint coupled with Congress' the public office, position, or franchise of all the parties to the
taking initial action of said complaint.995 action as justice requires."'
Q: Can an impeachable officer be ousted through a quo Q: What is the automatic reversion rule?
warranto proceeding?
A: The automatic revision rules applies when all appointments
A: Yes. An action for quo warranto can proceed independently involved in a chain of promotions is submitted simultaneously
of the impeachment proceedings. While both impeachment and for approval by the Civil Service Commission. The disapproval
quo warranto seek the ultimate removal of an incumbent government of the appointment of a person proposed to a higher position
officer, the two differ as to nature, jurisdiction, grounds, the invalidates the promotion of those in lower positions and
applicable procedural rules, and limitations. Impeachment is automatically restores them to their former positions. However,
political; quo warranto is judicial. In impeachment, the Congress the affected persons are entitled to the payment of salaries for
is the prosecutor, the trier, and the judge, whereas quo warranto services actually rendered at a rate fixed. in their promotional
petitions are instituted either by the Solicitor General on behalf appointments.
of the Republic of the Philippines or by an individual claiming
the public office in issue, both of which petitions are cognizable Before a public official or employee can be automatically restored
only by the Supreme Court. Impeachment proceedings seek to to her former position, there must first be a series of promotions;
confirm and vindicate the breach of the trust reposed by the second, all appointments are simultaneously submitted to the
Filipino people upon the impeachable official, but quo warranto Civil Service Commission for approval; and third, the Civil
determines the legal right, title, eligibility, or qualifications of Service Commission disapproves the appointment of a person
the incumbent to the contested public office. proposed to a higher position.997

The 1987 Constitution, as supplemented by the internal rules of 1. Preventive Suspension and Dismissal from Service
procedure of the Congress, directs the course of impeachment
proceedings. Quo warranto cases, on the other hand, are dictated Q: What is the purpose of preventive suspension?
by the Rules of Court. The end result of an impeachment A: Preventive suspension is a disciplinary measure which is
proceeding is the removal of the public officer, and his or her intended to enable the disciplinary authority to investigate charges
perpetual political disqualification from holding public office. against the respondent by preventing the latter from using his
On the other hand, when a quo warranto petition is granted, ouster position or office to influence witnesses, to intimidate them, or to
from office is likewise meted, but the Court can likewise impose tamper with the records which may be vital in the prosecution of
upon the public officer additional penalties such as reimbursement the case against him.998
of costs pertaining to the rightful holder of the public office and
such further judgment determining the respective rights in and to

996 Re: Letter of Mrs. Ma. Cristina Roco Corona, A.M. No. 20-07-10-SC, 12 January 2021.
997 Divinagracia, Jr. v. Sto. Tomas, G.R. No. 1 10954, 31 May 1995.
995 Francisco, Jr. v. House of Representatives, supra. 998 Gloria v. Court of Appeals, G.R. No. 131012, 21 April 1999.
 428 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 429
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Q: When can a public officer be preventively suspended? after it is shown that he is innocent of the charges for which he
was suspended. 00
A: The proper disciplining authority may preventively suspend
any subordinate officer under his authority pending an investigation, Q: What laws govern the preventive suspension of local
if the charge against such officer involves dishonesty, oppression elective officials?
or grave misconduct or neglect in the performance of duty or if
there are reasons to believe that the respondent is guilty of the A: The following laws provides for the basis of preventive
charges which would warrant his removal from service.999 No suspension of local elective officials:
compensation is due for the period of preventive suspension
Legal Basis Relevant Provisions
pending investigation. Such preventive suspension is authorized
by the Civil Service Law and cannot, therefore, be considered Local Imposed by the President, governor, or mayor as
"unjustified" even if later the charges are dismissed. It is one of Government the case may be. Any single preventive
those sacrifices which holding a public office requires for the Code, Secs. suspension of local elective officials shall not
public good. For this reason, it is limited to 90 days unless the delay 62-65 extend beyond 60 days. If several administrative
in the conclusion of the investigation is due to the employee cases are filed, preventive suspension should not
concerned.1000 be more than 90 days within a single year on the
same ground or grounds existing and known
Q: What are the rules in case a public officer is under
at the time of the first suspension.
preventive suspension pending appeal?
R.A. No. Imposed by the Ombudsman or Deputy
A: An appeal from the decision of the disciplinary authority
6770 Ombudsman. The preventive suspension shall
shall not stop the decision from being executory, and in case the
continue until the case is terminated by the
penalty is suspension or removal, the respondent shall be considered
as having been under preventive suspension during the pendency Office of the Ombudsman but not more than
of the appeal in the event he wins the appeal.' six (6) months, without pay, except when the
delay in the disposition of the case by the
Employees are entitled to compensation for the period of their Office of the Ombudsman is due to the fault,
suspension pending appeal if they are found innocent. Such negligence or petition of the respondent, in
suspension is actually punitive and it is precisely because the which case the period of such delay shall not
respondent is penalized before his sentence is confirmed that he be counted in computing the period of
should be paid his salaries in the event he is exonerated. It would suspension herein provided.
be unjust to deprive him of his pay as a result of immediate
execution of the decision against him and continue to do so even R.A. No. Any public officer against whom any criminal
3019, Sec. 13 prosecution under a valid information under
the Act or under the provisions of the Revised

999 Revised Administrative Code, Book V, Title I, Subtitle A, Chapter 7, Sec. 51.
' 000 Revised Administrative Code, Book V, Title I, Subtitle A, Chapter 7, Sec. 51.
'001 Revised Administrative Code, Book V, Title I, Subtitle A, Chapter 7, Sec. 47(4). " 2Sales v. Malhay, Jr., G.R. No. L-39557, 03 May 1984.
430 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 431
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Penal Code on bribery is pending in court,' Q: X, a public officer, was illegally dismissed. Thereafter, Y
shall be suspended from office. was appointed to the position which X previously held. X was
later found to be illegally dismissed. What is the status of Y's
appointment?
2. Illegal Dismissal, Reinstatement, and Back Salaries
A: When a regular government employee was illegally suspended
Q: What are the reliefs that can be given to an illegally
or dismissed, legally speaking, his position never became vacant
dismissed public officer or employee? and he is considered as not having left the office. The fact that
A: Reinstatement and back salary or wages are separate and there is now an appointee to the position he claims is, therefore,
distinct reliefs given to an illegally dismissed official or employee. of no moment. The new appointment is not valid.m6
The first means restoration to a state or condition from which
Q: C filed a complaint against M before the Civil Service
one had been removed or separated. One who is reinstated
Commission Regional Office (CSCRO) for Violation of
assumes the position he had occupied prior to the dismissal. The
second, on the other hand, is a form of relief that restores the Article 315, paragraph 1(b), Fixing of Teacher's Loan and
Engaging in Check Rediscounting. Later, the CSCRO filed a
income that was lost by reason of unlawful dismissal.'
formal charge for dishonesty against M. CSCRO promulgated
Where an officer entitled to fixed annual salary was unlawfully its Decision finding M guilty of dishonesty and imposing the
removed or suspended and was prevented for a time by no fault penalty of dismissal. M's motion for reconsideration was denied
of his own from performing the duties of the office, it was held prompting her to file an appeal with the Civil Service Commission.
that he might recover, and that the amount that he had earned in Meanwhile, the CSCRO's decision was implemented thereby
other employment during his unlawful removal should not be dismissing M from the service. The Civil Service Commission
deducted from his unpaid salary. He may recover the full amount modified the decision of CSCRO by finding M liable for the
notwithstanding that during the period of his removal or lower offense of Simple Dishonesty and imposing the penalty
suspension, the salary has been paid to, another person appointed of three (3) months suspension. Subsequently, M filed a motion
to fill the vacancy unlawfully created.' for the payment of back salaries and other emoluments due
her office from the time she was dismissed. The Department
Backpay may be allowed for the period when an employee is not of Education claims that the grant of backwages has no basis
allowed to work without his fault as when he was preventively because M was not exonerated, she voluntarily stopped working
suspended for alleged dishonesty and gross negligence but later and never reported to her office. Is the Department of
found innocent of the charges causing his suspension which was Education correct?
unjustified because he was dismissed before the period to appeal
the decision of the Civil Service Commission had expired.' A: No, the Department of Education is incorrect. The dismissal
from service imposed by the Civil Service Commission Regional
Office (CSCRO) cannot be executed pending appeal with the
Civil Service Commission. Premature execution of the decision
ordering the employee's dismissal from the service entitles the
1003 Judy Philippines, Inc. v. National Labor Relations Commission, G.R. No. 111934,
29 April 1998.
'°°
Floyd R. Mechem, A Treatise on the Law of Public Offices and Officers, 234.
l°°5 Abellera v. City of Baguio, G.R. No. L-23957, 18 March 1967. 1006 Floreza v. Ongpin, G.R. No. 81356, 26 February 1990.
432 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 433
ON POLITICAL LAW

1010 While a
employee to the payment of backwages even though the employee action absolve him from administrative liability.
is not fully exonerated on appeal. Effects of decisions of CSCROs criminal or civil case are allowed to exist simultaneously with an
are different from those of the heads of offices. Specifically, administrative case/judgement, neither are allowed to exist with
decisions of Secretaries and heads of agencies imposing removal the other under the concept of prejudicial question.
are executory upon confirmation of the Secretary concerned
while decisions of the CSCROs imposing dismissal from the Q: What is the difference of administrative liability from the
service are executory only when no motion for reconsideration other sources of liabilities of public officers?
or appeal is filed.
A: The purpose of administrative proceedings is mainly to protect
Here, M timely filed a motion for reconsideration and subsequently the public based on the time-honored principle that a public
filed an appeal before the Civil Service Commission within the office is a public trust. The quantum of evidence as well as the
reglementary period. Thus, CSCRO's decision never became procedure followed, and the sanctions imposed in administrative
executory. Consequently, its implementation of M's dismissal liability are likewise different.'°"
was illegal and has no basis in law.mw
Q: What are the penalties in case of administrative liability?
C. Accountability of Public Officers; Ombudsman (1987
A: In case of administrative liability, there shall be the same
CONST., Art. XL Secs. 5- 13; R.A. No. 6770, as
penalties for similar offenses, and only one penalty imposed in
amended; R.A. No. 6713)
each case. Penalties could be:
Q: What is the threefold liability rule for public officers? 1. Removal from service;
A: The threefold liability rule provides that an act or omission 2. Demotion in rank;
of a public officer may give rise to a civil liability, criminal
liability, and/or administrative liability. An action for each can 3. Suspension without pay (not more than one year);
proceed independently of others; these remedies may be pursued
4. Fine (not to exceed six months' salary); or
simultaneously or successively. '008
5. Reprimand.
The established rule is that an absolution from a criminal charge
is not a bar to an administrative prosecution, or vice versa. The
Q: What are the sources of criminal liability of a public officer?
dismissal of an administrative case does not necessarily bar the
filing of a criminal prosecution for the same or similar acts A: The following are sources of criminal liability of a public officer:
which were the subject of the administrative complaint. '009 In the
same vein, the trial court's finding of civil liability against a 1. Revised Penal Code
public officer will not necessarily lead to a similar finding in the a. Malfeasance and misfeasance in office (Secs. 203-212)
administrative action; nor will a favorable disposition in the civil

1007 Republic v. Maneja, G.R. No. 209052, 23 June 2021.

1008
Office ofthe Ombudsman v. Medrano, G.R. No.177580, 17 October 2008. 1010 Cana v. Gebusion, A.M. No. P-98-1284, 20 June 2000.
Cli)9 Domingo v. Royale:, G.R. No. 155831 18 February 2008. 101 ' AFionuevo, Jr. v. CA, G.R. No. 15299, 23 September 2003.

1
434 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 435
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b. Fraud and illegal exactions and transaction (Secs. 4. R.A. No. 3019(Graft and Corrupt Practices) - Other
213-216) than acts/omissions penalized by existing law, the following
corrupt practices are declared unlawful:
c. Malversation of public funds or property (Secs. 217-222)
a. Persuading, inducing, or influencing another public
d. Infidelity of public officers (Secs. 223-230) officer to violate the law (or allowing himself to be
e. Other offenses and irregularities committed by public persuaded to do so);
officers which include disobedience, refusal of assistance, b. Giving/receiving/requesting gifts in connection with
maltreatment of prisoners, etc. (Secs. 231-245) a contract between the Government and any other party;
2. R.A. No. 7080, as amended (An Act Defining the Crime c. Giving/receiving/requesting gifts in connection with
of Plunder) - Any public officer who accumulates or a Government permit or license;.
acquires ill-gotten wealth through a combination/series
of overt/criminal acts in the aggregate amount of at least d. Accepting employment in a private enterprise with a
P50 Million shall be punished by life imprisonment with pending official business with the official (until one
perpetual absolute disqualification from holding any year after the termination of the business);
public office.
e. Undue injury caused by manifest partiality, evident
Ill-gotten wealth also encompasses those derived indirectly bad faith, or gross inexcusable negligence (applies to
from government funds or properties through the use of officer/employees charged with the grant of licenses
power, influence, or relationship resulting in unjust or permits);
enrichment and causing grave damage and prejudice to
the Filipino people and the Republic. Although the f. Neglecting/refusing after due demand/request, without
commissions may not have been sourced directly from justification, to act within a reasonable time on any
the public funds, it is beyond cavil that the accused matter pending before the official;
would not have amassed these commissions had he not Entering, on behalf of the government, into a contract
exerted undue influence on the former President.'
g.
manifestly and grossly disadvantageous to the same;
3. P.D. No. 46 - A public officer is prohibited from receiving, h. Having a financing/pecuniary interest in any business
directly or indirectly, any gift, present, any form of with which the official intervenes in his official
benefitin the course of official duties, or parties thrown capacity (or for which he is prohibited by law);
in honor of the official/employees/or his immediate relatives,
if such is given to him by reason of his official position. i. Having interest in any transaction requiring the
approval of a group of which he is a member, and
which exercises discretion in approval;

J• Granting a license/permit in favor of any person not

qualified; or
1012
Disini v. Republic, G.R. No. 205172, 15 June 2021.
436 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 437
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k. Divulging to unauthorized persons valuable information not fully grasped the implication of the new guidelines. Is M
confidential in character acquired by the official on guilty of violation of reasonable office rules and regulations?
account of his official position.
A: Yes, M is guilty of violation of reasonable office rules and
Note that private persons, when acting in conspiracy regulations. A.C. No. 08-2017 is explicit that the clerk of court
with public officers, may be indicted and, if found may approve applications for leave of absence of lower court
guilty, held liable under Section 3 of Republic Act No. personnel only with prior written authorization from the presiding
3019, in consonance with the avowed policy of the Anti- judge. The Constitution grants the Supreme Court administrative
Graft Law to repress certain acts of public officers and supervision over all courts and its personnel. Jurisprudence has
private persons alike constituting graft or corrupt characterized this authority as exclusive; only the Supreme Court
practices act or which may lead thereto.'°'3 can oversee the court employees' compliance with all laws, rules
and regulations. Moreover, only the Supreme Court can set the
5. P.D. No. 1445 (Government Auditing Code) - No parameters concerning their discipline. Any conduct, act, or
accountable officer shall be relieved from liability by omission that violates the norm of public accountability, or
reason of his having acted under the direction of a diminishes, or tends to diminish the faith of the people in the
superior officer in paying out, applying, or disposing of judiciary will not be tolerated, condoned, or countenanced.
the funds or property with which he is chargeable, unless
prior to that act, he notified the superior officer in writing However, since the incident happened before the amendment of
of the illegality of the payment, application, or disposition. Rule 140 of the Rules by A.M. No. 18-01- 05-SC dated 02
October 2018, Rule 140 will not apply to M if its application will
Q: M defied Judge B's verbal instruction and Supreme Court work injustice, or will be prejudicial to her. Instead, the penalty
Administrative Circular No. 08-2017, dated 02 February provisions in the Revised Rules on Administrative Cases in Civil
2017, requiring that applications for leave of absence of Service (2011 RRACCS), the civil service rules in place at the
lower court personnel should bear the recommendation for time of commission of the offense of violation of reasonable
approval or disapproval of the Presiding Judge, or the Clerk office rules and regulations on 07 April 2017, will apply. Thus,
of Court, as delegated by the Presiding Judge, in writing. the prescribed penalty for M's violation of A.C. No. 08-2017 is
Judge B charged M, the Clerk of Court IV of the same court, a reprimand.' °I 4
with Abuse of Authority and Malfeasance for approving
without authority the leave of absence applications of a court Q: The Sangguniang Bayan of Municipality P passed Resolution
stenographer. M asked for understanding and humanitarian No. 164, authorizing Silvino, the Municipal Treasurer, to
consideration of the Court, citing the many tasks she has to transfer an unspecified amount of municipal funds from the
perform as the Clerk of Court of a single-sala station, Land Bank of the Philippines (LBP) to Davao Cooperative
causing her to be forgetful at times of the limits of her Bank (DCB). However, DCB suffered insolvency in 1998, and
authority. She claimed that she received a copy of A.C. No. was placed under receivership. As a result, the Municipality
08-2017, but she might have overlooked the circular and had P failed to withdraw the deposited amounts. The Commission
on Audit noted that the Sangguniang Bayan should have

1°13 Villanueva v. People, G.R. No. 218652, 23 February 2022. 1014 Brasales v. Borja, A.M. No. P-21-024, 16 June 2021.
438 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 439
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allocated the funds to certain municipal projects. Yet, the evidence which is more convincing to the court as worthy of
implementation of these projects was jeopardized since the belief than that which is offered in opposition thereto." Notably,
funds cannot be withdrawn. Thus, the Commission on Audit the Sandiganbayan acquitted Silvino and the others because their
recommended the filing of criminal and administrative charges guilt were not proven beyond reasonable doubt. Thus, any civil
against the municipal officials involved in the transaction liability survives because only preponderant evidence is necessary
with DCB.The Ombudsman filed an Informationfor violation to establish it. Here, the required quantum of proof was met to
of Section 3(e) of Republic Act No. 3019 against Silvino and sustain the Sandiganbayan's findings on the civil liability of
the Sangguniang Bayan members. The Information charged Silvino and his co-accused.1°15
the accused of conspiracy and gross inexcusable negligence in
issuing Resolution No. 164, Series of 1994. Q: Is the breach of duty of a public officer actionable?

After trial, the Fifth Division of the Sandiganbayan acquitted A: As a general rule, mistakes committed by a public officer are
Silvino as well as his co-accused based on reasonable doubt. not actionable absent any clear showing that they were motivated
Nevertheless, the Sandiganbayan ordered the accused civilly by malice or gross negligence amounting to bad faith.1015 The
and solidarily liable for the municipality's unrecovered funds exception to this is when an individual suffers particular or
in the amount of P9.25 million. The Sandiganbayan explained special injury on account of the non-performance by the public
that even if the accused were not grossly and inexcusably officer of the public duty. The improper performance or non-
negligent to be held criminally liable under Section 3(e) of performance of duty will give rise to a cause of action in favor of
'°'7
Republic Act No. 3019, they were still negligent enough to the aggrieved party for any injury sustained by him.
incur civil liability. According to the Sandiganbayan, the
accused negligently transferred the municipal funds despite Q: What is the Arias Doctrine?
their failure to conduct reasonable due diligence in ascertaining A: The Arias Doctrine provides that all heads of offices have to
DCB's solvency by merely relying on the bank manager's rely to a reasonable extent on their subordinates and on the good
assurances. Is the decision of the Sandiganbayan correct? faith of those who perform function within their power of control
A: Yes, the decision of the Sandiganbayan is correct. Every or supervision.1018 Thus, the mere fact that a public officer is the
person criminally liable for a felony is also civilly liable. Yet, the head of an agency does not mean that he is the party ultimately liable
dismissal of the criminal action does not carry with it the for administrative acts or omissions of their subordinates.1019
extinction of the civil liability where: "(a) the acquittal is based However, this doctrine does not apply where public officers were
on reasonable doubt as only preponderance of evidence is knowing participants in the conspiracy, such as in a case where
required; (b) the court declares that the liability of the accused is
only civil; and (c) the civil liability of the accused does not arise
from or is not based upon the crime of which the accused is
acquitted." The quantum of proof to establish civil liability is
preponderance of evidence which is defined as the "weight,
credit, and value of the aggregate evidence on either side and is
1015
Matobato, Sr. v. People, G.R. Nos. 229265 & 229624, 15 February 2022.
1016 Soriano v. Marcelo, G.R. No. 163017, 18 June 2008.
usually considered to be synonymous with the term 'greater weight 1017 Vinzons-Chato v. Fortune Tobacco, G.R. No. 141309, 19 June 2007.
of the evidence' or 'greater weight of the credible evidence.' It is l°18 .4rias v. Sandiganbayan, G.R. No. 81563, 19 December 1989.
1019 Albert v. Gangan, G.R. No. 126557, 06 March 2001.
440 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 441
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they still affixed their signatures on the documents presented to that the employees who were responsible for its assessment were
them despite the patent irregularities therein.1°2° remiss in their duty. Besides, as a public official holding a
supervisory position, Mr. B should not heavily depend on the
Q: Mr. B was the Chief of the Subsidiary and Revenue 1021
acts committed by his subordinates.
Section of the Department of Public Works and Highways
whose duty was to supervise the recording and control of the Q: When is the doctrine of state immunity applicable?
Notice of Cash Allocation issued by the Department of
Budget and Management for the cash requirements of the A: The doctrine of state immunity from suit applies to complaints
Office. He approved the reimbursement of the emergency filed against public officials done in the performance of their
repair and purchases of spare parts of a vehicle even when duties. The suit must be regarded as one against the State where
the spare parts enumerated cannot be considered as emergency satisfaction of the judgment against the public official concerned
in nature. Mr. B was found guilty of gross neglect of duty will require the State itself to perform a positive act such as
and was meted the penalty of dismissal from the service. Mr. appropriation of the amount necessary to pay damages awarded
B contends that he was only guilty of simple negligence. Does to the plaintiff.
the act of Mr. B amount to gross negligence? Under prevailing jurisprudence, even mistakes concededly committed
A: Mr. B is guilty of gross negligence and should be dismissed. by such a public officer in the discharge of his official duties are
Gross neglect of duty or gross negligence pertains to "negligence not actionable as long as it is not shown that they were motivated
°22
characterized by the want of even slight care, or by acting or by malice or gross negligence amounting to bad faith.'
omitting to act in a situation where there is a duty to act, not
Q: Give examples where immunity of public officers does
inadvertently but willfully and intentionally, with a conscious not apply.
indifference to the consequences, insofar as other persons may be
affected." It is the omission of that care which even inattentive and A: The following are examples where immunity of public
thoughtless men never fail to give to their own property. On the officers does not apply:
other hand, simple neglect of duty is "the failure of an employee
or official to give proper attention to a task expected of him or 1. Any person suffering material or moral loss because a
her, signifying a disregard of a duty resulting from carelessness public servant or employee refuses or neglects, without
or indifference." It is the responsibility of Mr. B to supervise his just cause, to perform his official duty may file an action
subordinates and to make sure that they perform their respective for damages and other relief against the latter.
functions in accordance with the law. 2. The general rule is that public officials can be held
Mr. B's defense that the request had been duly approved by his personally accountable for acts claimed to have been
subordinates in the regular performance of their functions is performed in connection with official duties where they
untenable. The absence of the counter signature is an indicium

1020Alvizo v. Sandiganbayan, G.R. Nos. 98494-98692, 99006-20, 99059-99259, l°21 Civil Service Commission v. Beray. G.R. Nos. 191946 & 191974, 10 December 2019.
99309-18, 99412-16 & 99436-99636, 99417-21 & 99637-99837 & 99887-100084, 1022 Phil. Racing Club v. Bonifacio, G.R. No. L-11944, 31 August 1960; Lumanayay.
17 July 2003. Commission on Audit, G.R. No. 185001, 25 September 2009.
442 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 443
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have acted ultra vires or where there is showing of 9. Receiving gifts

bad faith.1°23
10. Conviction of a crime involving moral turpitude
3. A public officer may be sued as such to compel him to
do an act which is required by law through a petition for 11. Solicitation of contributions
mandamus. As a special civil action, mandamus lies only 12. Violation of existing Civil Service Laws and Rules
to compel an officer to perform a ministerial duty but not
to compel the performance of a discretionary duty.1024 13. Falsification of official document
4. Where the government itself has violated its own laws, 14. Frequent unauthorized absences/tardiness
the aggrieved party may directly implead the government
even without first filing his claim with the Commission 15. Habitual drunkenness
on Audit as normally required, as the doctrine of State 16. Gambling
immunity "cannot be used as an instrument for perpetrating
an injustice".1025 17. Refusal to perform duty/render overtime service

Q: Enumerate the grounds for disciplinary action against 18. Disgraceful conduct prior to entering the service
public officers under the Revised Administrative Code. 19. Physical or mental incapacity
A: Section 46 (b) of the Code provides for the following 20. Borrowing money by superior officers
grounds for disciplinary action:
21. Usurious lending
1. Dishonesty
22. Willful failure to pay debts
2. Oppression
23. Contracting loans with persons whom the office of the
3. Neglect of duty employee has business
4. Misconduct 24. Pursuit of private business
5. Disgraceful and immoral conduct 25. Insubordination
6. Being notoriously undesirable 26. Engaging in partisan political activities
7. Discourtesy 27. Conduct prejudicial to the service
8. Inefficiency and incompetence 28. Lobbying for personal interest in legislative halls
29. Promoting the sale of tickets for private enterprises not
for charity
1023 Chavez
v. Sandiganbayan, G.R. No. 91391, 24 January 1991.
1024 Calderon v. Solicitor General, G.R. Nos. 103752-53, 25 November 1992. 30. Nepotism
1025 Sanders v. Veridiano, G.R. No. L-46930, 10 June 1988.
444 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 445
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Q: What are the grounds for disciplinary actions under the grave misconduct, even if said defects of character are not
Local Government Code? connected with his office, they affect his right to continue in office.
A: An elective local official may be disciplined, suspended, or Q: SWD is a government-owned or -controlled corporation
removed from office on any of the following grounds: which released an aggregate amount of P3,354,123.50 worth
1. Disloyalty to the Republic of the Philippines of benefits for its officers and employees. The Commission on
Audit then declared the benefits illegal. SWD claimed that
2. Culpable violation of the Constitution the Department of Budget and Management (DBM) authorized
the continuous grant of allowances or fringe benefits found
3. Dishonesty, oppression, misconduct in office, gross to be an established practice of local water districts such as
negligence, or dereliction of duty SWD, subject only to certain conditions. Are the employees
4. Commission of any offense involving moral turpitude or of SWD liable for the refund of the disallowed amounts?
an offense punishable by at least prision mayor A: Yes, the employees are liable for the refund of the disallowed
5. Abuse of authority amounts. The presumption of good faith and regularity in the
performance of official duty is negated, not only by evident bad
6. Unauthorized absence for fifteen (15) consecutive working faith, but also by the gross negligence of the approving and
days, except in the case of members of the Sangguniang certifying officers in the performance of their duties. The SWD
Panlalawigan, Sangguniang Panlungsod, Sangguniang officers took it upon themselves to continue the grant of benefits
Bayan, and Sangguniang Barangay based on previous SWD board resolutions and DBM authorizations
despite contrary prevailing rules and jurisprudence. Reliance
7. Application for, or acquisition of, foreign citizenship or
upon the DBM letters, previous board resolutions, and dated
residence or the status of an immigrant of another country authorizations fell short of the standard of good faith and diligence
8. Such other grounds as may be provided in the Code and required in the discharge of their duties to sustain exoneration
other laws from solidary liability. Their liability should, however, be limited to
the "net disallowed amounts" or the total disallowed amount less
Q: X, a civil service employee, was dismissed from government the amounts excused to be returned by the other recipients. To
service on the ground of dishonesty. He contends that his act rule otherwise would impose an inequitable burden upon the
was not work-related or was not connected with the approving and certifying officers of shouldering the entire
performance of his official duty. Is his contention tenable? amount disbursed, when some recipients were already allowed to
retain the amounts that they received.
A: The Supreme Court in Remolona v. Civil Service Commission'6
explained that dishonesty, in order to warrant dismissal, need not
be committed in the course of the performance of duty by the
person charged. The rationale for the rule is that if a government
officer or employee is dishonest or is guilty of oppression or

1026 G.R. No. 137473, 02 August 2001. 1027 Ancheta v. Commission on Audit, G.R. No. 236725, 02 February 2021.
446 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 447
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Q: What is the rule regarding misconduct as a ground for Q: Mr. B was tasked to ensure that the quality of the printed
dismissal? sheets conformed to the prescribed specifications by the
Bangko Sentral ng Pilipinas (BSP) for certain denominations
A: Misconduct means intentional wrongdoing or deliberate
before the start of the actual production. Unfortunately, it
violation of a rule of law or standard of behavior. To constitute
was discovered that the surname of the former President was
an administrative offense, misconduct should relate to or be
misspelled. BSP formally charged Mr. B with gross neglect of
connected with the performance of the official functions and
duty and meted out the penalty of dismissal from service.
duties of a public officer. In grave misconduct, as distinguished
Mr. B claims that the penalty of dismissal from service was
from simple misconduct, the elements of corruption, clear intent
too harsh and invoked his length of service, good faith, and
to violate the law, or flagrant disregard of an established rule
the fact that it was his first offense to mitigate his liability.
must be manifest.1°"
Can the foregoing mitigating circumstances downgrade the
Q: Mr. M was charged with violation of Section 3(a) of penalty of Mr. B?
Republic Act No. 3019. The Information stated that Atty. R, A: Section 53, Rule IV of the Uniform Rules on Administrative
the Provincial Legal Officer, willfully, unlawfully, and criminally Cases in the Civil Service recognizes the application of mitigating,
persuaded, induced or influenced Mr. M to release from aggravating, or alternative circumstances in the imposition of
detention prisoners without a court order. Mr. M argued administrative penalties. However, such provision applies only
that it was Mr. C, a private individual, who persuaded, when clear proof is shown, using the specific standards set by
induced, or influenced to release the detention prisoners. Is law and jurisprudence, that the facts in a given case justify the
Mr. M's defense tenable? mitigation of the prescribed penalty.
A: In the case of Marzan v. People,1029 the Supreme Court held The Supreme Court in Bangko Sentral ng Pilipinas v. Boor)"
in the negative. The elements of Section 3(a) of Republic Act found that the respondent therein was indeed guilty of gross
No. 3019 are: (1) the offender is a public officer; (2) the offender neglect of duty. However, based on the same facts, the Supreme
persuades, induces, or influences another public officer to perform Court did not appreciate the mitigating circumstances. The Court
an act or the offender allows himself to be persuaded, induced, explained that length of service cannot be considered as a
or influenced to commit an act; (3) the act performed by the mitigating circumstance when the offense committed is found to
other public officer or committed by the offender constitutes a be serious. Further, the respondent therein admitted that he
violation of rules and regulations duly promulgated by competent merely focused his attention on the color quality, registration,
authority or an offense in connection with the official duty of the and design preference before actual production which negates his
latter. The law is clear that the law merely requires that the assertion of good faith. Lastly, the defense of first offense does
offender who allowed himself to be persuaded, induced, or not apply since gross neglect of duty is punishable by dismissal,
influenced, is a public officer, such as Mr. M. It is immaterial even if committed for the first time.
whether the one who induced him was likewise a public officer
or a private individual.

1°28 Narvasa v. Sanchez, G.R. No. 169449, 26 March 2010.

1029 G.R. No. 226167, 11 October 2021. l°3° Bangko Sentral ng Pilipinas v. Bool, G.R. No. 207522, 18 April 2021.
 448 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 449
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Q: Who has jurisdiction over disciplinary cases against electorate, the people who are expected to know the life and
public officers? character of their respective candidates.
A: Disciplinary cases and cases involving personnel action In the case of Carpio-Morales v. Court of Appeals, the Supreme
affectingemployees in the Civil Service are within the exclusive Court traced the roots of the condonation doctrine in American
jurisdictionof the Civil Service Commission.1031 Except when jurisprudence and discussed that the different US State Courts
initiated by the disciplining authority, no complaint against a civil have treated condonation doctrine on a case-by-case basis. The
service official or employee shall be given due course unless the Court emphasized the Constitutional provision that "the State
same is in writing and subscribed and sworn to by the complainant. shall maintain honesty and integrity in the public service and
take positive and effective measures against graft and corruption."
Q: Aside from the grounds for disciplinary action, what are The Court further held that election is not a mode of condoning
the other grounds for a public officer to be dismissed from an administrative offense, and there is simply no constitutional
the civil service? or statutory basis in our jurisdiction to support the notion that an
A: Under the Civil Service Commission rules, public officers official elected for a different term is fully absolved of any
and employees may be dropped from the rolls within thirty (30) administrative liability arising from an offense done during a prior
days from the time any of the following grounds arises: term. Nonetheless, the Supreme Court held that the abandonment
of the condonation doctrine shall apply prospectively. In other words,
1. Absence without Approved Leave; the condonation doctrine shall still apply to all acts committed
and pending cases before the decision in the said case.
2. Unsatisfactory or Poor Performance;
3. Physical Unfitness; and Q: What is the primary function of the Ombudsman?

4. Mental Disorder. A: The Office of the Ombudsman has the disciplinary authority
over all elective and appointive officials of the Government and
Dropping from the rolls, as a mode of separation from the its subdivisions, instrumentalities, and agencies. However, this
service, is non-disciplinary in nature and shall not result in the does not include impeachable officers, members of Congress,
forfeiture of any benefit on the part of the official or employee or and the Judiciary.1033 A complaint filed in or taken cognizance of
in disqualification from reemployment in the government. by the Office of the Ombudsman charging any public officer or
employee including those in government-owned or -controlled
Q: What is the condonation doctrine? corporations, with an act or omission alleged to be illegal, unjust,
improper or inefficient is an Ombudsman case.
A: Prior to the case of Carpio-Morales v. Court of Appeals,'°32
jurisprudence held that any administrative wrongdoing of a re- The prosecution of cases cognizable by the Sandiganbayan shall
elected official was only applicable during his or her previous be under the direct exclusive control and supervision of the
term; and that the re-election meant a condonation from the Office of the Ombudsman. In cases cognizable by the regular

1031 Debulgado v. Civil Service Commission, G.R. No. 111471, 26 September 1994.
1032 G.R.
Nos. 217126-27, 10 November 2015. 1033 R.A. No. 6770, hereinafter "The Ombudsman Act of 1989", Sec. 21.
450 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 451
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courts, the control and supervision by the Office of Ombudsman Meanwhile, Article 203 of the Revised Penal Code defines a
is only investigative. public officer as any person who, by direct provision of the law,
popular election or appointment by competent authority, shall take
Q: In administrative proceedings, what is the remedy in case part in the performance of public functions in the Government of
of an adverse decision by the Ombudsman? the Philippine Islands, or shall perform in said Government, or in
A: The remedy is to file a petition for review under Rule 43 of any of its branches, public duties as an employee, agent, or
the Rules of Court with the Court of Appeals within fifteen (15) subordinate official, of any rank or class, shall be deemed to be a
days from notice of judgment.1034 Nonetheless, any order, directive public officer. While IRC was organized under the Corporation Code,
or decision imposing the penalty of public censure, reprimand or it is a sequestered corporation subject to the fiscal supervision of
suspension of not more than one month's salary shall be final the PCGG and is a government-owned or -controlled corporation
and unappealable. which is under the direct supervision of the Office of the
President. The Ombudsman's mandate as "the champion of the
Q: In criminal proceedings, what is the remedy in case of an people" and "preserver of the integrity of the public service"
adverse decision by the Ombudsman? have both constitutional and statutory bases. As an independent
constitutional body, the power of the Ombudsman to investigate
A: Where the finding of the Ombudsman as to the existence of is plenary and unqualified such that it has full discretion to
probable cause is tainted with grave abuse of discretion, amounting determine whether a criminal case should be filed or not based
to lack or excess of jurisdiction, an aggrieved party may file a on the attendant facts and circumstances of each case.1036
petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure .1°35 Q: The Commission on Audit investigated the infrastructure
projects of Tacloban City Engineering Office and found that
Q: Mr. E was charged by the Office of the Ombudsman for 32 infrastructure projects did not comply with the approved
violation of Sec. 3(e) of Republic Act No. 3019. Mr. E contends plans and were overpaid due to bloated accomplishment
that the Ombudsman has no jurisdiction over him as he is reports. A complaint was filed against Engineer M and other
not a public officer. He explained that while the company officials for violation of Section 3(e) of R.A. No. 3019.
where he sits as a director (IRC) was sequestered by the
government and is being supervised by the Presidential Engr. M denied the charges and averred that, as a Materials
Commission on Good Government (PCGG), it remains a Engineer, his work revolves around the quality control
private corporation. Is the contention of Mr. E correct? aspect of the infrastructure projects, such as quality control
testing, sampling, and pre-testing of construction materials.
A: No, Mr. E's contention is incorrect. Section 2(b) of Republic On the other hand, the inspection reports focused on the
Act No. 3019 states that the term public officer includes elective quantity aspect. Engr. M also disavowed any participation in
and appointive officials and employees, permanent or temporary, the alleged overpayment of the projects as he was not part of
whether in the classified or unclassified or exempt service the team that recommended payment of the contract price to
receiving compensation, even nominal, from the government. the contractors. He also did not sign any disbursement voucher.

j°34 Enemecio v. Ombudsman, G.R. No. 146731, 13 January 2004.

I03) Gatchalian v. Office of the Ombudsman, G.R. No. 229288, 01 August 2018. 1036
Quiogue v. Estacio, Jr., G.R. No. 218530 (Resolution), 13 January 2021.
 452 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 453
ON POLITICAL LAW

The Office of the Ombudsman found probable cause to indict of bad faith, the presumption of good faith prevails. The effort to
Engr. M for 23 counts of violation of Section 3(e) of R.A. No. eradicate graft and corruption and remove scalawags in government
3019, and 26 counts of Falsification of Public Documents is commendable. Nonetheless, agencies tasked with preliminary
under paragraph 4, Article 171 of the Revised Penal Code. investigation should shield the innocent from precipitate, spiteful
Engr. M filed a Motion for Reconsideration but was denied, and burdensome prosecution. °37
thus he filed a Petition for Certiorari. Did the Ombudsman
commit grave abuse of discretion in finding probable cause Q: Mayor C authorized the disbursement of funds for the
against Engr. M? purchase of insecticides and fungicides. Thereafter, the Commission
on Audit issued a Notice of Disallowance which declared the
A: Yes. There was grave abuse of discretion on the part of the disbursement as irregular. Such finding was used by Task
Ombudsman. The Supreme Court does not interfere with the Force Abono of the Office of the Ombudsman-Field Investigation
Ombudsman's findings as to whether probable cause exists, Office to file a case against Mayor C and other employees. In
except: (a) to afford protection to the constitutional rights of the their defense, Mayor C argues that they were denied due process
accused; (b) when necessary for the orderly administration of since they were denied the opportunity to explain their side
justice or to avoid oppression or multiplicity of actions; (c) when before the Commission on Audit prior to the issuance of the
there is a prejudicial question which is sub judice; (d) when the Notice of Disallowance relative to the questioned procurement.
acts of the officer are without or in excess of authority; (e) where They argued that they were not served with copies of AOM
the prosecution is under an invalid law, ordinance or regulation; No. 2004-002 and the Notice of Disallowance, and that the Office
(t) when double jeopardy is clearly apparent; (g) where the court of the Ombudsman unduly decided on their administrative
has no jurisdiction over the offense; (h) where it is a case of liabilities without the processes of the Commission on Audit
persecution rather than prosecution; and (i) where the charges relative to the questioned procurement being properly
are manifestly false and motivated by the lust for vengeance. concluded. In view of this, Mayor C claimed that the final
The Department of Public Works and Highway's Department orders of the Office of the Ombudsman dismissing them
Memorandum and Staffing Manual has delineated the scope of from the service and imposing the attendant penalties were
the functions of a Materials Engineer which mainly revolves thus rendered without due process and are, to them, void ab
around ensuring the quality of materials used in an infrastructure initio. Is the argument of Mayor C correct?
project. In this case, there is no controversy with regard to the A: No, Mayor C is incorrect. It has long been settled that
quality of the materials used in the questioned infrastructure projects. Commission on Audit proceedings neither forestall nor postpone
It would be unjust and unreasonable to indict Engr. M simply the exercise of the Office of the Ombudsman of its independent
because he was part of the supposed anomalous projects, even if and constitutionally mandated investigatory powers relative to
the alleged illegal act is beyond the scope of his functions. The any anomaly or transgression committed by Philippine public
officers. Mayor C cannot belatedly claim that the Commission
sheer volume of the projects is likewise insufficient to deduce
any illegal act, absent specific facts that demonstrate Engr. M's on Audit audit observation and disallowance proceedings have
manifest partiality, evident bad faith, or inexcusable negligence. an effect similar to that of a prejudicial question in criminal
At any rate, it is axiomatic that good faith is always presumed,
unless convincing evidence to the contrary is adduced. The party 1037 Macasil v. Fraud Audit and Investigation Office-Commission on Audit, G.R. No.
alleging bad faith has the burden of proof. Absent clear evidence 226898 (Resolution), 11 May 11, 2021.
 454 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 455
ON POLITICAL LAW

proceedings under Rule 111, Sections 6 and 7 of the Rules of the Justices and Judges of the Judiciary. Section 16 of Article VI
Court. Verily, there is neither statutory nor jurisprudential basis of the Constitution grants the Congress the right to promulgate
for such an interpretation, since it has been established that its own rules to govern its proceedings, punish its members for
proceedings before the Office of the Ombudsman can (and must) disorderly behavior, and, with the concurrence of two-thirds of
proceed independently from the Commission on Audit proceedings all its members, suspend or expel a member.
that may either be pending or favorable to a respondent. The purposes
of the two classes of proceedings are distinct: Commission on Audit Q: What is the primary function of the Sandiganbayan
proceedings are to determine the nature of, and the corresponding
A: The Sandiganbayan exercises exclusive original jurisdiction
accountabilities in anomalous government transactions, whilst
over the following cases:
proceedings before the Office of the Ombudsman are for the
determination of criminal and administrative wrongdoing of 1. violations of Republic Act Nos. 3019 and 1379;
public officers. While the two may definitely intersect, one may
definitely proceed independently of the other. Moreover, it 2. crimes committed by public officers and employees
appears that petitioners did not raise the issue of denial of due embraced in Title VIII of the Revised Penal Code (e.g.,
process in their appeal before the Court of Appeals. Notably, the bribery, malversation of public funds);
Ombudsman's ruling was not solely based on the Notice of 3. other offenses or felonies (whether simple or complexed
Disallowance, but also (and mainly) on the factual findings and with other crimes) committed by public officers and
separate investigation conducted by the Ombudsman's Task Force employees in relation to their office, where the penalty
Abono. The Notice of Disallowance was only an investigative
prescribed by law is higher than prisioncorreccional or
lead that paved the way for the disclosure of the anomalies in the
imprisonment for six (6) years, or a fine of P6,000.00;
subject procurement. Thus, Mayor C's belated claim of denial of
and
due process deserves scant consideration!'
4. Civil and criminal cases filed pursuant to and in connection
Q: Does the Ombudsman have disciplinary authority over with Executive Orders No. 1, 2, 14, and 14-A issued in 1986.
the members of Congress?
The Sandiganbayan shall exercise exclusive original jurisdiction
A: No, the Ombudsman does not have disciplinary authority over the cases mentioned in (1), (2), and (3) above where one or
over the members of Congress. There is no issue about the more of the accused are officials occupying the following
disciplinary authority of the Office of the Ombudsman over all positions in the government, whether in a permanent, acting, or
elective and appointive officials of the Government and its interim capacity, at the time of the commission of the offense:
subdivisions, instrumentalities and agencies, including Members
of the Cabinet, local government, and government-owned or - 1. Officials of the executive branch occupying the positions
controlled corporations and their subsidiaries. The only officials of regional director and higher, otherwise classified as
not under its disciplinary authority are those who may be Grade 27 and higher:
removed only by impeachment, the Members of Congress, and
a. Provincial governors, vice-governors, members of the
sangguniang panlalawigan, and provincial treasurers,
assessors, engineers, and other provincial department heads;
1038 Suyat v. Court of Appeals, G.R. Nos. 251978-80, 24 January 2023.
 456 COMPENDIOUS BAR REVIEWER LAW ON PUBLIC OFFICERS 457
ON POLITICAL LAW

b. City mayors, vice-mayors, members of the sangguniang qualify the crime as having been committed in relation to public
panlungsod, city treasurers, assessors, engineers, and office. In the absence of any allegation that the offense charged
other city department heads; was necessarily connected with the discharge of the duties or
functions of a public officer, the ordinary court, not the
c. Officials of the diplomatic service occupying the
Sandiganbayan, has jurisdiction to hear and decide the case. It is
position of consul and higher;
not whether the phrase "committed in relation to public office"
d. Philippine army and air force colonels, naval captains, appears in the Information. The relation between the crime and
and all officers of higher rank; the office must be direct and not accidental, that is, the relation
has to be such that, in the legal sense, the offense cannot exist
e. Officers of the Philippine National Police while occupying without the office. The Sandiganbayan shall exercise exclusive
the position of provincial director and those holding appellate jurisdiction over final judgments, resolutions or orders
the rank of senior superintendent or higher; and of regional trial courts whether in the exercise of their own
o39
f. City and provincial prosecutors and their assistants, original jurisdiction or of their appellate jurisdiction.'
and officials and prosecutors in the Office of the Q: Senator Fleur De Lis was charged with plunder before
Ombudsman and special prosecutor. the Sandiganbayan. After finding the existence of probable
2. Presidents, directors or trustees, or managers of government cause, the court issued a warrant for the Senator's arrest.
owned or -controlled corporations, state universities or The prosecution filed a motion to suspend the Senator relying
educational institutions or foundations; on Section 5 of the Plunder Law. According to the prosecution,
the suspension should last until the termination of the case.
3. Members of Congress and officials thereof classified as Senator Lis vigorously opposed the motion contending that
Grade 27 and up; only the Senate can discipline its members and that to allow
his suspension by the Court would violate the principle of
4. Members of the judiciary without prejudice to the
separation of powers. Is Senator Lis's contention tenable?
provisions of the Constitution;
Explain.1°4°
5. Chairmen and members of Constitutional Commissions,
A: The contention of Senator Fleur de Lis is not tenable. The
without prejudice to the provisions of the Constitution; and
suspension contemplated in the Constitution to discipline a
6. All other national and local officials classified as Grade member of the Senate is not the suspension contemplated under
27 and higher. the Section 5 of the Plunder Law. The latter is not a penalty but a
preliminary preventive measure and is not imposed upon the
Q: What is the primary test in determining whether petitioner for misbehavior as a member of Congress.
Sandiganbayan has jurisdiction?
A: What determines the jurisdiction of the Sandiganbayan is the
specific factual allegation in the Information that would indicate
close intimacy between the discharge of the accused's official
1039 Soller v. Sandiganbayan, G.R. No. 144261-62, 09 May 2001.
duties and the commission of the offense charged in order to 1040 BAR 2015.
 458 COMPENDIOUS BAR REVIEWER
ON POLITICAL LAW

In a synonymous case of Santiago v. Sandiganbayan, 1041 it

appears to be a ministerial duty of the court to issue the order of IX. Administrative Law
suspension upon a determination of the validity of the criminal
information filed before it. The order of suspension provided in A: General Principles
Republic Act No. 3019 is distinct from the power of the
Congress to discipline its own ranks. Neither does the order of Q: What is administrative law?
suspension encroach upon the power of Congress. The doctrine
A: It is the part of the law which provides for the structural,
of separation of powers, by itself, is not deemed to have 042
functional, and procedural principles and rules of governance.'
effectively excluded the members of Congress from Republic
Act No. 3019. Q: What are the sources of administrative law?
A: The Constitution, governing statutes, or other laws, and
interpretations of laws made by an administrative agency
same.1043
charged with the task of interpreting and applying the

Q: What is the doctrine of necessary implication?

A: Under the doctrine of necessary implication, every statute is
understood, by implication, to contain all such provisions as may
be necessary to effectuate its object and purpose, or to make
effective rights, powers, privileges, or jurisdiction which it
grants, including all such collateral and subsidiary consequences
1044
as may be fairly and logically inferred from its terms.

B. Administrative Agencies; Definition, Types, and Manner

of Creation

Q: What is an administrative agency?

A: An administrative agency is defined as "[a] government
body charged with administering and implementing a particular
legislation. It is a fundamental rule that an administrative agency

1042 Administrative Code of 1987 (E.O. No. 292), Third Whereas Clause.
1°43 Alvarez v. Guingona, Jr., G.R. No. 118303, 31 January 1996.
1 044
Pepsi-Cola Products v. Secretary of Labor, G.R. No. 96663 & 103300, 10
August 1999.

1041 G.R. No. 128055, 18 April 2001. 459

 460 COMPENDIOUS BAR REVIEWER ADMINISTRATIVE LAW 461
ON POLITICAL LAW

has only such powers as are expressly granted to it by law and This term includes the state universities and colleges and
those that are necessarily implied in the exercise thereof.1°' the monetary authority of the State.'46
Q: What is an agency of the government? Q: How are administrative agencies created?
A: An "agency of the Ggvernment" refers to any of the various A: An administrative agency may be created through any of the
units of the government, including the following: following modes, to wit, either (1) by the Constitution (fundamental
law), (2) by law (statute duly enacted by Congress), or (3) by
1. National Agency - a unit of the national government.
authority of law.'
2. Local Agency - a local government or a distinct unit therein.
For example: (1) The Commission on Audit is an administrative
3. Department - an executive department created by law. agency created by the Constitution; (2) The Philippine Health
Insurance Corporation is an administrative agency created by a
4. Bureau - any principal subdivision or unit of any department. law duly enacted by Congress; and (3) The Inter-Agency Task
5. Office - any major functional unit of a department or Force for the Management of Emerging Infectious Diseases is an
bureau including regional offices. It may also refer to administrative agency created by the authority of law given to
any position held or occupied by individual persons, the President.
whose functions are defined by law or regulation. Q: What are the relationships between administrative agencies?
6. Instrumentality - any agency of the national government,
A: Unless otherwise expressly stated in the Administrative Code
not integrated within the department framework, vested or in other laws defining the special relationships of particular
with special functions or jurisdiction by law, endowed agencies, administrative relationships shall be categorized and
with some if not all corporate powers, administering special defined as follows:
funds, and enjoying operational autonomy, usually through a
charter. This term includes regulatory agencies, chartered 1. Supervision and Control - Supervision and control shall
institutions and government-owned or -controlled corporations. include the authority to act directly whenever a specific
function is entrusted by law or regulation to a subordinate;
7. Regulatory Agency - any agency expressly vested with direct the performance of duty; restrain the commission
jurisdiction to regulate, administer or adjudicate matters of acts; review, approve, reverse or modify acts and
affecting substantial rights and interests of private persons, decisions of subordinate officials or units; determine
the principal powers of which are exercised by a collective priorities in the execution of plans and programs; and
body, such as a commission, board or council. prescribe standards, guidelines, plans and programs. Unless
8. Chartered Institution - any agency organized or operating a different meaning is explicitly provided in the specific
under a special charter, and vested by law with functions law governing the relationship of particular agencies, the
relating to specific constitutional policies or objectives.

1046 Id.
1047 Secretary of Department of Transportation and Communication v. Mabalot, G.R.
1045 Republic v. Court of Appeals, G.R. No. 90482, 05 August 1991. No. 138200, 27 February 2002.
462 COMPENDIOUS BAR REVIEWER ADMINISTRATIVE LAW 463
ON POLITICAL LAW

word "control" shall encompass supervision and control coordination. The coordination may be accomplished by
as defined herein. having the department represented in the governing
board of the attached agency or corporation, either as
2. Administrative Supervision - Administrative supervision
chairman or as a member, with or without voting rights,
which shall govern the administrative relationship between a
if this is permitted by the charter; having the attached
department or its equivalent and regulatory agencies or
corporation or agency comply with a system of periodic
other agencies as may be provided by law, shall be limited to
reporting which shall reflect the progress of programs
the authority of the department or its equivalent to
and projects; and having the department or its equivalent
generally oversee the operations of such agencies and to
provide general policies through its representative in the
insure that they are managed effectively, efficiently and
board, which shall serve as the framework for the
economically but without interference with day-to-day
internal policies of the attached corporation or agency.
activities; or require the submission of reports and cause
the conduct of management audit, performance evaluation Matters of day-to-day administration or all those pertaining
and inspection to determine compliance with policies, to internal operations shall be left to the discretion or
standards and guidelines of the department; to take such judgment of the executive officer of the agency or
action as may be necessary for the proper performance corporation.'
of official functions, including rectification of violations,
abuses and other forms of maladministration; and to Q: Is there a relationship of independence and autonomy
review and pass upon budget proposals of such agencies between administrative agencies?
but may not increase or add to them.
A: Yes. Under Book IV, Title DI, Chapter 12 of the Administrative
Such authority shall not, however, extend to: (1) Code of 1987 (Executive Order No. 292), the Office of the Solicitor
appointments and other personnel actions in accordance General is described as an "independent and autonomous office
with the decentralization of personnel functions under attached to the Department of Justice," headed by the Solicitor
the Administrative Code, except appeal is made from an General, "who is the principal law officer and legal defender of
action of the appointing authority, in which case the the Government." Section 35 of the Executive Order is explicit
appeal shall be initially sent to the department or its on this score, thus: "Section 35. Powers and Functions. - The
equivalent, subject to appeal in accordance with law; (2) Office of the Solicitor General shall represent the Government of
contracts entered into by the agency in the pursuit of its the Philippines, its agencies and instrumentalities and its officials
objectives, the review of which and other procedures and agents in any litigation, proceeding, investigation or matter
related thereto shall be governed by appropriate laws, requiring the services of a lawyer. When authorized by the
rules and regulations; and (3) the power to review, President or head of the office concerned, it shall also represent
reverse, revise, or modify the decisions of regulatory government-owned or -controlled corporations. The Office of
agencies in the exercise of their regulatory or quasi- the Solicitor General shall constitute the law office of the
judicial functions.
3. Attachment - This refers to the lateral relationship between
the department or its equivalent and the attached agency
or corporation for purposes of policy and program 1048 E.0. No. 292, Book IV, Chapter 7, Sec. 38.
 464 COMPENDIOUS BAR REVIEWER ADMINISTRATIVE LAW 465
ON POLITICAL LAW

Government and, as such, shall discharge duties requiring the Q: Are there other categories of government-owned or -
services of a lawyer...55.1049 controlled corporations?
The Supreme Court further pointed out that it is not entirely A: Yes. Government-owned or -controlled corporations may be
impossible that the Office of the Solicitor General may take a further categorized by the Department of the Budget, the Civil
position adverse to his clients like the Civil Service Commission Service Commission, and the Commission on Audit for purposes
and the National Relations Commission, among others, and even of the exercise and discharge of their respective powers, functions
the People of the Philippines. In such instances, however, it is and responsibilities with respect to such corporations.''
not proper for the Solicitor General to simply decline to handle
the case or arbitrarily withdraw therefrom. The Court enjoins Q: Are employees and officers of government-owned or -
him to "nevertheless manifest his opinion and recommendation controlled corporations covered by the Civil Service Law or
to the Court which is an invaluable aid in the disposition of Labor Code?
the case."'
A: It depends on whether the government-owned or -controlled
Q: What is a government-owned or -controlled corporation? corporation has an original charter or is incorporated under the
general corporation law (Revised Corporation Code). Officers
A: A government-owned or -controlled corporation refers to and employees of government-owned or -controlled corporations
any agency organized as a stock or non-stock corporation, vested without original charters are covered by the Labor Code, not the
with functions relating to public needs whether governmental or Civil Service Law.'
proprietary in nature, and owned by the Government directly or
through its instrumentalities either wholly, or, where applicable Thus, under the present state of the law, the test in determining
as in the case of stock corporations, to the extent of at least fifty- whether a government-owned or controlled corporation is
one (51) percent of its capital stock.''' subject to the Civil Service Law is the manner of its creation
such that government corporations created by special charter are
In other words, a government-owned or controlled corporation subject to its provisions while those incorporated under the
is: (1) established by original charter or through the general 1055
general Corporation Law are not within its coverage.
corporation law; (2) vested with functions relating to public need
whether governmental or proprietary in nature; and (3) directly Q: Does the Commission on Audit have audit jurisdiction
owned by the government or by its instrumentality, or where the over government-owned or -controlled corporations without
government owns a majority of the outstanding capital stock. original charters?
Possessing all three (3) attributes is necessary to be classified as
A: Yes. A corporation, whether with or without an original
a government-owned or -controlled corporation.'52
charter, is under the audit jurisdiction of the Commission on

I049 Gonzales v. Chavez, G.R. No. 97351, 04 February 1992. l°53 E.O. No. 292, Sec. 2(13).
1050
1051 E.O. No. 292, Sec. 2(13).
1054
GSIS Family Bank Employees Union v. Villanueva, G.R. No. 210773, 23 January 2019.
1055 Philippine National Oil Co.-Energy Development Corp. v. Leogardo, G.R. No.
1052
Funa v. Manila Economic & Cultural Office, G.R. No. 193462, 04 February 2014. 58494, 05 July 1989.
 466 COMPENDIOUS BAR REVIEWER ADMINISTRATIVE LAW 467
ON POLITICAL LAW

Audit so long as the government owns or has controlling interest Commissioners continued to be heard by the appropriate units of
in it. 1056
the HSAC.''
Q: Can administrative agencies be abolished or reorganized? C. Powers of Administrative Agencies
A: Yes, similar to the mode of its creation, an administrative Quasi-Legislative (Rule-Making) Power
agency may be abolished or reorganized through any of the
following modes: (1) by the Constitution (fundamental law), (2) Q: What is quasi-legislative or rule-making power?
by law (statute duly enacted by Congress), or (3) by authority
of law."57 A: This is the power to make rules and regulations which results
in delegated legislation that is within the confines of the granting
For example: (1) An administrative agency created by the statute and the doctrine of non-delegability and separability of
Constitution may likewise be abolished or reorganized through powers.' 059
revisions of the Constitution; (2) An administrative agency
created by a law may likewise be abolished or reorganized by Q: What are the limits of the quasi-legislative or rule-
another law duly enacted by Congress; and (3) An administrative making power of administrative agencies?
agency created by the authority of law given to the President
A: Administrative rules and regulations are the product of a
may be abolished, grouped, consolidated, merged, or integrated
delegated power to create new and additional legal provisions
with other administrative agencies, as allowed under the Revised
that have the effect of law. Necessarily, these administrative
Administrative Code.
rules and regulations should be within the scope of the statutory
Q: What happens to cases being heard by an administrative authority granted by the legislature to the administrative agency.
agency that is abolished or reorganized? Therefore, it is required that the regulation be germane to the
objects and purposes of the law, and not be in contradiction to,
1060
A: It depends on whether the administrative agency retains but in conformity with, the standards prescribed by law.
jurisdiction over the case being heard or such jurisdiction is
acquired by a different administrative agency. Transitory provisions In other words, it is a well-settled rule that the letter of the law is
may be provided by the Constitution, law, or by authority of law. controlling and cannot be amended by an administrative rule or
regulation. Thus, "in case of discrepancy between the basic law
For example: When the Housing and Land Use Regulatory Board and a rule or regulation issued to implement said law, the basic
(HLURB) was reconstituted as the Human Settlements Adjudication
Commission (HSAC), the latter retained the former's adjudicatory
function by virtue of Republic Act No. 11201. The cases pending
before the HLURB Regional Field Offices and HLURB Board of

1°58 En Banc Resolution No. 8, Series of 2021, Promulgating the Rules of Procedure
of the Human Settlements Adjudication Commission dated 02 March 2021.
1056 1059 Smart Communications, Inc. v. National Telecommunications Commission, G.R.
Oriondo v. Commission on Audit, G.R. No. 211293, 04 June 2019. Nos. 151908 & 152063, 12 August 2003.
1057 Secretary of Department of Transportation and Communication v. Mabalot, G.R. No. 1060 The Philippine Racing Commission and the Games and Amusements Board v.
138200, 27 February 2002. Manila Jockey Club, Inc., G.R. No. 228505, 16 June 2021.
 468 COMPENDIOUS BAR REVIEWER ADMINISTRATIVE LAW 469
ON POLITICAL LAW

law prevails, because the said rule or regulation cannot go Kinds of administrative rules and regulations
beyond the terms and provisions of the basic law."1°61
Q: What are the kinds of administrative rules and regulations?
Q: What are the tests to determine the valid delegation of
legislative power to administrative agencies? A: An administrative regulation may be classified as a legislative
rule, an interpretative rule, or a contingent rule.
A: A valid delegation of legislative powers must comply with
the completeness test and the sufficient standard test. Legislative rules are in the nature of subordinate legislation and
designed to implement a primary legislation by providing the
Completeness Test — The law is complete when it sets the policy details thereof. They usually implement existing law, imposing
to be executed leaving nothing to the delegate except to general, extra-statutory obligations pursuant to authority properly
implement it. In other words, the law must be complete in all its delegated by Congress and effect a change in existing law or
terms when it leaves the legislature such that when it reaches the policy which affects individual rights and obligations.
delegate, the only thing left to do to is to enforce it.'
Interpretative rules are intended to interpret, clarify, or explain
Sufficient Standard Test — On the other hand, the law lays down existing statutory regulations under which the administrative
a sufficient standard when it provides adequate guidelines or body operates. Their purpose or objective is merely to construe
limitations to determine the boundaries of the delegate's authority the statute being administered and purport to do no more than
and prevent the delegation from running riot. interpret the statute. Simply, they try to say what the statute
means and refer to no single person or party, but concern all
The tests are intended to prevent a total transfer of legislative
those belonging to the same class which may be covered by the
authority to the delegate, who is not allowed to step into the shoes
said rules.
of the legislature and exercise a power essentially legislative.
Also, the tests ensure that administrative agencies, in the exercise of Contingent rules are those issued by an administrative authority
their power of subordinate legislation, create rules and regulations based on the existence of certain facts or things upon which the
°64
that are germane to the objects and purposes of the statute they enforcement of the law depends.'
implement; and are not in contradiction, but in full conformity
with the standards prescribed in the law.' Q: Can administrative agencies amend, revise, alter or
repeal their own rules and regulations?
A: Yes. The express grant of rule-making power necessarily
includes the power to amend, revise, alter, or repeal the same.
This is to allow administrative agencies flexibility in formulating and
adjusting the details and manner by which they are to implement
the provisions of a law, in order to make it more responsive to
the times. Hence, it is a standard provision in administrative
1061 Guagua National Colleges v. Guagua National Colleges Faculty Labor Union,
G.R. No. 213730, 23 June 2021.
1062 Equi-Asia Placement, Inc. v. Department of Foreign Affairs, G.R. No. 152214,
19 September 2006.
1063 Sobrejuanite-Flores v. Pilando, Jr., G.R. No. 251816, 23 November 2021. 1064 Republic v. Drugmaker's Laboratories, Inc., G.R. No. 190837, 05 March 2014.
 470 COMPENDIOUS BAR REVIEWER ADMINISTRATIVE LAW 471
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rules that prior issuances of administrative agencies that are 2. It must be promulgated in accordance with the
inconsistent therewith are declared repealed or modified.1°65 prescribed procedure;
Q: Can administrative agencies issue rules and regulations 3. It must be within the scope of the authority given by the
which expand the provisions of laws passed by Congress? legislature; and
A: No. Administrative regulations adopted under legislative 4. It must be reasonable.'
authority by a particular department must be in harmony with the
provisions of the law and should be for the sole purpose of Q: What is required to make administrative rules and
carrying into effect its general provisions. The law itself cannot regulations binding?
be expanded by such regulations. An administrative agency
A: In general, an administrative regulation needs to comply with
cannot amend an act of Congress.1" 6 the requirements laid down by the Administrative Code of 1987
Q: What is the nature of administrative rules and regulations on prior notice, hearing, and publication in order to be valid and
issued by administrative agencies? binding, except when the same is merely an interpretative rule.
This is because "[w]hen an administrative rule is merely
A: Rules and regulations issued by administrative bodies to interpretative in nature, its applicability needs nothing further
interpret the law which they are entrusted to enforce, have the than its bare issuance, for it gives no real consequence more than
force of law, and are entitled to great respect. Administrative what the law itself has already prescribed".
issuances partake of the nature of a statute and have in their
favor a presumption of legality. As such, courts cannot ignore On the other hand, if the administrative rule goes beyond merely
administrative issuances especially when, as in this case, its providing for the means that can facilitate or render least
validity was not put in issue. Unless an administrative order is cumbersome the implementation of the law but substantially
declared invalid, courts have no option but to apply the same.' increases the burden of those governed, it behooves the agency
to accord at least to those directly affected a chance to be heard,
Requisites for Validity and thereafter to be duly informed, before that new issuance is
given the force and effect of law."1°69
Q: What are the requisites for the validity of administrative
issuances? Q: Do the courts have jurisdiction to pass upon the validity
or constitutionality of administrative rules or regulations?
A: To be valid, an administrative issuance must comply with
the following requisites: A: Yes. Where what is assailed is the validity or constitutionality
of a rule or regulation issued by the administrative agency in the
1. Its promulgation must be authorized by the legislature; performance of its quasi-legislative function, the regular courts
have jurisdiction to pass upon the same. The determination of
whether a specific rule or set of rules issued by an administrative
1065
Pharmaceutical and Health Care Association v. Duque III, G.R. No. 173034, 09
October 2007. 1068 Executive Secretary v. Soulhwing Heavy Industries, Inc., G.R. Nos. 164171,
066
Oxygen & Acetylene Co., Inc. v. Drilon, G.R. No. 82849, 02 August 1989. 164172 & 168741, 20 February 2006.
1067
Cagasca-Evangelista v. Bantag, G.R. No. 251954 (Resolution), 10 June 2020. 1069 Republic v. Drugmaker's Laboratories, Inc., G.R. No. 190837, 05 March 2014.
 472 COMPENDIOUS BAR REVIEWER ADMINISTRATIVE LAW 473
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agency contravenes the law or the Constitution is within the process and its non-observance will, as a rule, invalidate the
jurisdiction of the regular courts.'" administrative proceedings.1°"

Quasi-Judicial (Adjudicatory) Power Q: What are the requisites for procedural due process in
administrative proceedings?
Administrative Due Process
A: The requisites for procedural due process in administrative
Q: What is quasi-judicial or adjudicatory power? proceedings are:
A: This is the power to hear and determine questions of fact to 1. The right to a hearing, which includes the right to present
which the legislative policy is to apply and to decide in one's case and submit evidence in support thereof;
accordance with the standards laid down by the law itself in
enforcing and administering the same law. The administrative 2. The tribunal must consider the evidence presented;
body exercises its quasi-judicial power when it performs in a 3. The decision must have something to support itself;
judicial manner an act which is essentially of an executive or
administrative nature, where the power to act in such manner is 4. The evidence must be substantial;
incidental to or reasonably necessary for the performance of the
executive or administrative duty entrusted to it. In carrying out 5. The decision must be based on the evidence presented at
their quasi-judicial functions, the administrative officers or the hearing, or at least contained in the record and
bodies are required to investigate facts or ascertain the existence disclosed to the parties affected;
of facts, hold hearings, weigh evidence, and draw conclusions 6. The tribunal or body or any of its judges must act on its
from them as basis for their official action and exercise of own independent consideration of the law and facts of
discretion in a judicial nature."' the controversy, and not simply accept the views of a
subordinate;
Q: Do administrative proceedings require the observance of
due process? 7. The board or body should, in all controversial questions,
render its decision in such manner that the parties to the
A: Yes. The liberal atmosphere which pervades the procedure in
proceeding can know the various issues involved, and
administrative proceedings does not empower the presiding the reason for the decision rendered.
officer to make conclusions of fact before hearing all the parties
concerned. The formalities usually attendant in court hearings In addition, administrative due process includes:
need not be present in an administrative investigation, provided
that the parties are heard and given the opportunity to adduce 1. The right to notice, be it actual or constructive, of the
their evidence. The right to notice and hearing is essential to due institution of the proceedings that may affect a person's
legal right;

1070
Smart Communications, Inc. v. National Telecommunications Commission, G.R.
Nos. 151908 & 152063,12 August 2003. 1072 Matuguina Integrated Wood Products, Inc. v. Court of Appeals, G.R. No. 98310, 24
1071
Id. October 1996.
 474 COMPENDIOUS BAR REVIEWER ADMINISTRATIVE LAW 475
ON POLITICAL LAW

2. Reasonable opportunity to appear and defend his rights Disputes involving Questions of Law - All cases involving only
and to introduce witnesses and relevant evidence in his favor; questions of law shall be submitted to and settled or adjudicated
3. A tribunal so constituted as to give him reasonable assurance by the Secretary of Justice as Attorney-General of the National
Government and as ex officio legal adviser of all government-
of honesty and impartiality, and one of competent
owned or -controlled corporations. His ruling or decision thereon
jurisdiction; and
shall be conclusive and binding on all the parties concerned.1077
4. A finding or decision by that tribunal supported by
Disputes involving Questions of Fact and Law - Cases involving
substantial evidence presented at the hearing or at least
mixed questions of law and of fact or only factual issues shall be
ascertained in the records or disclosed to the parties. 1073
submitted to and settled or adjudicated by:1078
Q: Can different administrative agencies share jurisdiction 1. The Office of the Solicitor General, if the dispute, claim,
over certain controversies?
or controversy involves only departments, bureaus,
A: No. When an administrative agency or body is conferred offices and other agencies of the National Government.
quasi-judicial functions, all controversies relating to the subject 2. The Office of the Government Corporate Counsel, if the
matter pertaining to its specialization are deemed to be included
dispute, claim, or controversy is between or among the
within the jurisdiction of said administrative agency or body.
government-owned or -controlled corporations or entities
Split jurisdiction is not favored.''
being served by the Office of the Government Corporate
Q: How are disputes, claims, and controversies between Counsel.
administrative agencies settled? 3. The Secretary of Justice, in all other cases not falling
A: All disputes, claims and controversies, solely between or among under paragraphs (1) and (2). '°79
the departments, bureaus, offices, agencies and instrumentalities Referral to Arbitration - The deteimination of factual issues may be
of the National Government, including government-owned or referred to an arbitration panel composed of one representative each
controlled corporations, such as those arising from the interpretation of the parties involved and presided over by a representative of
and application of statutes, contracts or agreements, shall be the Secretary of Justice or the Solicitor General, as the case
administratively settled or adjudicated in the manner provided in may be.1080
Chapter 14, Book IV of Executive Order No. 292.'°
Appeals - The decision of the Secretary of Justice, as well as that
However, the rules thereunder shall not apply to disputes involving of the Office of the Solicitor General or Office of the Government
the Congress, the Supreme Court, the Constitutional Commissions, Corporate Counsel, when approved by the Secretary of Justice,
and local governments.1076

1077 E.O. No. 292, Book IV, Chapter 14, Sec. 67.
1078 E.O. No. 292, Book IV, Chapter 14, Sec. 68.
1073 Singson v. NLRC, G.R. No. 122389, 19 June 1997. 1079 Uniform Rules on Dispute Resolution under Presidential Decree No. 242, as
1074 rejada v. Homestead Property Corp., G.R. No. 79622, 29 September 1989. amended, for Government Agencies and Instrumentalities, and Government-Owned
1075 E.O. No. 292, Book IV, Chapter 14, Sec. 66. or Controlled Corporations, Department of Justice, dated 26 September 2015.
1076 Id
1080 E.O. No. 292, Book IV, Chapter 14, Sec. 69.
 476 COMPENDIOUS BAR REVIEWER ADMINISTRATIVE LAW 477
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shall be final and binding upon the parties involved. Appeals Administrative Res Judicata
may, however, be taken to the President where the amount of the
claim or the value of the property exceeds P1 Million. The Q: Does the concept of res judicata apply to decisions rendered
decision of the President shall be final.1" 1 by administrative bodies?

Administrative Appeal and Review A: Yes. It is already well-settled in our jurisprudence that the
decisions and orders of administrative agencies rendered pursuant
Q: How are administrative appeals undertaken? to their quasi-judicial authority, have, upon their finality, the
force and binding effect of a final judgment within the purview
A: Unless otherwise provided by law or executive order, an
of the doctrine of res judicata. The rule of res judicata which
appeal from a final decision of an administrative agency may be forbids the reopening of a matter once judicially determined by
taken to the Department Head, whose decision may further be competent authority applies as well to the judicial and quasi-
brought to the regular courts of justice, in accordance with the judicial acts of public, executive or administrative officers and
procedure specified by the law. The appellate administrative 084
boards acting within their jurisdiction.'
agency may even conduct additional hearings in the appealed
case, if deemed necessary. 1082 Fact-finding, Investigative, Licensing, and Rate-Fixing Powers
Q: How are final judgments and orders of administrative Q: Do administrative agencies have the authority to conduct
agencies reviewed? fact-finding investigations?
A: The Revised Rules of Civil Procedure included Rule 43 to A: Yes. It has been essayed that the life blood of the administrative
provide a uniform rule on appeals from quasi-judicial agencies. process is the flow of fact, the gathering, the organization and
Under the rule, appeals from their judgments and final orders are the analysis of evidence. Investigations are useful for all
now required to be brought to the Court of Appeals on a verified administrative functions, not only for rule making, adjudication,
petition for review. A quasi-judicial agency or body has been and licensing, but also for prosecuting, for supervising and
defined as an organ of government, other than a court or legislature, directing, for determining general policy, for recommending,
which affects the rights of private parties through either adjudication legislation, and for purposes no more specific than illuminating
or rule-making powers. obscure areas to find out what, if anything, should be done. An
administrative agency may be authorized to make investigations,
According to Section 3 of Rule 43, "[a]n appeal under this Rule
not only in proceedings of a legislative or judicial nature, but
may be taken to the Court of Appeals within the period and in
also in proceedings whose sole purpose is to obtain information
the manner herein provided whether the appeal involves questions
upon which future action of a legislative or judicial nature may
of fact, of law, or mixed questions of fact and law".1°83
be taken and may require the attendance of witnesses in proceedings
of a purely investigatory nature. It may conduct general inquiries

1081 E.O. No. 292, Book IV, Chapter 14, Sec. 70.
1082 Mendoza v. National Police Commission, G.R No. 139658, 21 June 2005; Reyes
v. Zamora, G.R. No. L-45732, 05 May 1979.
1083
Carpio v. Sulu Resources Development Corp., G.R. No. 148267, 08 August 2002. 1084 Dulay v. Minister of Natural Resources, G.R. No. L-48766, 09 February 1993.
 478 COMPENDIOUS BAR REVIEWER ADMINISTRATIVE LAW 479
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into evils calling for correction and to report findings to Regional Trial Court may punish contumacy or refusal (to
appropriate bodies and make recommendations for actions.1°85 comply with a subpoena) as contempt.1087
Q Can an administrative agency issue subpoenas in the Q: Can the power to investigate in disciplinary proceedings
course of its fact-finding investigations? be delegated to and conducted by another body or group
of officials?
A: Yes, if provided by law, administrative agencies may
enforce subpoenas issued in the course of investigations, whether A: Yes. However, administrative due process requires that, prior to
or not adjudication is involved, and whether or not probable imposing disciplinary sanctions, the disciplining authority must
cause is shown, and even before the issuance of a complaint. It is make an independent assessment of the facts and the law. On its
not necessary, as in the case of a warrant, that a specific charge face, a decision imposing administrative sanctions must show the
or complaint of violation of law be pending or that the order be bases for its conclusions. While the investigation of a case may
made pursuant to one. It is enough that the investigation be for a be delegated to and conducted by another body or group of
lawfully authorized purpose. The purpose of the subpoena is to officials, the disciplining authority must nevertheless weigh the
discover evidence, not to prove a pending charge, but upon evidence gathered and indicate the applicable law. In this
which to make one if the discovered evidence so justifies. manner, the respondents would be informed of the bases for the
sanctions and thus be able to prepare their appeal intelligently.
The administrative agency has the power of inquisition which is
Such procedure is part of the sporting idea of fair play in
not dependent upon a case or controversy in order to get 1088
a democracy.
evidence, but can investigate merely on suspicion that the law is
being violated or even just because it wants assurance that it is Q: How are findings of fact made by administrative agencies,
not. When investigative and accusatory duties are delegated by in disciplinary cases, considered by reviewing courts?
statute to an administrative body, it, too may take steps to inform
itself as to whether there is probable violation of the law. A: The findings of facts of administrative agencies such as the
Civil Service Commission, are controlling on the reviewing court.
In sum, it may be stated that a subpoena meets the requirements The Civil Service Commission is better-equipped in handling
for enforcement if the inquiry is (1) within the authority of the cases involving the employment status of employees in the civil
agency; (2) the demand is not too indefinite; and (3) the service since it is within its field of expertise. As a general rule, a
information is reasonably relevant!' finding of guilt in administrative cases, if supported by substantial
evidence or that amount of evidence which a reasonable mind
Q: Can an administrative agency cite a person in contempt?
might accept as adequate to justify a conclusion, will be
A: Yes, if provided by law. If the power to cite in contempt is sustained by the reviewing court.'89
not expressly granted, the administrative agency may, in case of
disobedience, invoke the aid of the Regional Trial Court within
whose jurisdiction the contested case being heard falls. The
1087 E.O. No. 292, Book VII, Chapter 3, Sec. 13.
1088 Department of Health v. Camposano, G.R. No. 157684, 27 April 2005.
j°85 Evangelista v. Jarencio, G.R. No. L-29274, 27 November 1975. 1°89 Panarigan v. Civil Service Commission-Regional Office (CSCRO) No. III, G.R.
1086 Id: No. 238077, 17 March 2021.
 480 COMPENDIOUS BAR REVIEWER ADMINISTRATIVE LAW 481
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Q: Can the legislative power to grant licenses be delegated to Judicial Recourse and Review
administrative agencies?
Q: Are courts vested with the power to review acts of an
A: Yes. Congress has granted certain administrative agencies administrative agency?
the power to grant licenses for, or to authorize the operation of
certain public utilities. With the growing complexity of modern A: Yes. The acts or decisions of administrative agencies exercising
life, the multiplication of the subjects of governmental regulation, quasi-judicial or legislative powers are within the power of the
and the increased difficulty of administering the laws, there is a courts to scrutinize even though no right of review is given by
constantly growing tendency towards the delegation of greater the statute, in order to keep these administrative agencies within
powers by the legislature, and towards the approval of the their jurisdiction and to protect the substantial rights of the
practice by the courts. It is generally recognized that a franchise parties affected by their decisions.
may be derived indirectly from the State through a duly designated
Consequently, judicial review is proper in case of lack of
agency, and to this extent, the power to grant franchises has
jurisdiction, grave abuse of discretion, error of law, fraud or
frequently been delegated, even to agencies other than those of a
collusion and courts may declare an action or resolution of an
legislative nature. In pursuance of this, it has been held that
administrative authority to be illegal (1) because it violates or to
privileges conferred by grant by local authorities as agents for
fails to comply with some mandatory provision of law, or (2)
the State constitute as much a legislative franchise as though the 092
because it is corrupt, arbitrary or capricious.'
grant had been made by an act of the Legislature.'
Q: How should findings of fact by an administrative agency
Q: May administrative agencies exercise the power to be considered by the courts?
prescribe rates?
A: It is a well-recognized principle that purely administrative
A: Yes. The function of prescribing rates by an administrative and discretionary functions may not be interfered with by the
agency may be either a legislative or an adjudicative function. If courts. In general, courts have no supervising power over the
it were a legislative function, the grant of prior notice and hearing to proceedings and actions of the administrative departments of the
the affected parties is not a requirement of due process. As government. This is generally true with respect to acts involving
regards rates prescribed by an administrative agency in the the exercise of judgment or discretion, and findings of fact.
exercise of its quasi-judicial function, prior notice and hearing Findings of fact by an administrative board or official, following
are essential to the validity of such rates. When the rules and/or a hearing, are binding upon the courts and will not be disturbed
rates laid down by an administrative agency are meant to apply except where the board or official has gone beyond his statutory
to all enterprises of a given kind throughout the country, they authority, exercised unconstitutional powers or clearly acted
may partake of a legislative character. Where the rules and the arbitrarily and without regard to his duty or with grave abuse
rates imposed apply exclusively to a particular party, based upon of discretion.lm
a finding of fact, then its function is quasi-judicial in character.'91

1°9° Philippine Airlines, Inc. v. Civil Aeronautics Board, G.R No. 119528, 26 March 1997. 1092 San Miguel Corp. v. Secretary of Labor, G.R. No. L-39195, 16 May 1975.
1091 1093 Sichangco v. The Board of Commissioners of Immigration, G.R. No. L-23545,
Philippine Consumers Foundation, Inc. v. Secretary of Education, Culture and
Sports, G.R. No. 78385, 31 August 1987. 07 November 1979, citing Deluao v. Casteel, G.R. No. L-21906, 24 December 1968.
 482 COMPENDIOUS BAR REVIEWER ADMINISTRATIVE LAW 483
ON POLITICAL LAW

Q: How should the application and interpretation of law by issued by an administrative agency contravenes the law or the
an administrative agency be considered by the courts? Constitution is within the jurisdiction of the Regional Trial
Court. The doctrine of hierarchy of courts directs the parties to
A: The construction given to a statute by an administrative
file their petitions for extraordinary writs before the appropriate
agency charged with the interpretation and application of that
court of lower rank. Non-compliance with this requirement is a
statute is entitled to great respect and should be accorded great
ground for dismissal of the petition.'
weight by the courts, unless such construction is clearly shown
to be in sharp conflict with the governing statute or the D. Primary Administrative Jurisdiction
Constitution and other laws.1094
Q: What is the Doctrine of Primary Administrative Jurisdiction?
Q: How do you assail the validity or constitutionality of
rules or regulations issued by an administrative agency? A: The doctrine of primary administrative jurisdiction provides
that courts cannot and will not resolve a controversy involving a
A: The special civil action of certiorari may be availed of to question which is within the jurisdiction of an administrative
invoke the expanded scope of judicial power of the court tribunal, especially where the question demands the exercise of
although the provisions of the Rules of Court on certiorari and sound administrative discretion requiring the special knowledge,
prohibition refers to the exercise of judicial, quasi-judicial or experience, and services of the administrative tribunal to
ministerial functions by a board, tribunal or officer. determine technical and intricate matters of fact.'
It should be emphasized, however, that while the Constitution
Q: How is the Doctrine of Primary Administrative Jurisdiction
expressly vested the Supreme Court with original jurisdiction applied?
over petitions for certiorari, prohibition, and mandamus, among
others, such power is shared with the Court of Appeals and the A: The doctrine of primary jurisdiction precludes the courts from
Regional Trial Courts. Such concurrence of jurisdiction does not resolving a controversy over which jurisdiction has initially°9abeen
grant litigants unrestrained freedom of choice of the court where lodged with an administrative body of special competence.'
application for the writ may be filed. There is a hierarchy of
courts determinative of the venue of appeals which should also Q: What is the effect of non-compliance with the Doctrine of
serve as a general determinant of the proper forum for the Primary Administrative Jurisdiction?
application for the extraordinary writs.'
A: The effect is that the judicial case will be suspended until
Accordingly, if what is being assailed is the validity or after the matters within the competence of the administrative
099
constitutionality of a rule or regulation issued by an administrative tribunal are threshed out and determined.'
agency in the performance of its quasi-legislative functions, then
the Regional Trial Court has jurisdiction to pass upon the same.
The determination of whether a specific rule or set of rules
1096 Smart Communications, Inc. v. National Telecommunications Commission, G.R.
Nos. 151908 & 152063, 12 August 2003.
1°94 laphockun v. Professional Regulation Commission, G.R. No. 213314 & 214432, 23 1097 Villaflor v. Court of.4ppeals, G.R. No. 95694, 09 October 1997.
March 2021. 1090 Ros v. Department of Agrarian Reform, G.R. No. 132477, 31 August 2005.
1095 Id. 1099 Industrial Enterprises, Inc. v. Court of.4ppeals, G.R. No. 88550, 18 April 1990.
 484 COMPENDIOUS BAR REVIEWER ADMINISTRATIVE LAW 485
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E. Exhaustion of Administrative Remedies assumed approval of the latter, (7) when to require exhaustion of
administrative remedies would be unreasonable, (8) when it
Q: What is the Doctrine of Exhaustion of Administrative would amount to a nullification of a claim, (9) when the subject
Remedies? matter is a private land in land case proceedings, (10) when the
A: Under the doctrine of exhaustion of administrative remedies, rule does not provide a plain, speedy and adequate remedy, and
a litigant cannot go to court without first pursuing his (11) when there are circumstances indicating the urgency of
administrative remedies, otherwise his action is premature and judicial intervention.
his case is not ripe for judicial determination. A litigant should The requirement of prior exhaustion of administrative remedies
first exhaust the administrative remedies provided by law before may likewise be dispensed with in the following instances: (1)
seeking judicial intervention in order to give the administrative when the claim involved is small; (2) when strong public interest
agency an opportunity to decide correctly the matter and prevent is involved; and (3) in quo warranto proceedings.102
unnecessary and premature resort to the court."°°
Q: Compare the Doctrine of Primary Administrative Jurisdiction
Q: What is the effect of non-compliance with the Doctrine of and the Doctrine on Exhaustion of Administrative Remedies.
Exhaustion of Administrative Remedies?
A: The doctrine of primary administrative jurisdiction refers to
A: The only effect of non-compliance with this rule is that it the competence of a court to take cognizance of a case at first
will deprive the complainant of a cause of action, which is a instance. Unlike the doctrine of exhaustion of administrative
ground for a motion to dismiss. If not invoked at the proper time, remedies, it cannot be waived.103
this ground is deemed waived and the court can then take
cognizance of the case and try it. Failure to observe the doctrine Though both concepts aim to maximize the special technical
of exhaustion of administrative remedies does not affect the knowledge of administrative agencies, the doctrine of primary
jurisdiction of the court.110' administrative jurisdiction requires courts to not resolve or
"determine a controversy involving a question which is within
Q: What are the exceptions to the Doctrine on Exhaustion of the jurisdiction of an administrative tribunal." The issue is
Administrative Remedies? jurisdictional and the court, when confronted with a case under
A: The doctrine on exhaustion of administrative remedies is the jurisdiction of an administrative agency, has no option but to
dismiss it.
disregarded (1) when there is a violation of due process, (2)
when the issue involved is purely a legal question, (3) when the In contrast, exhaustion of administrative remedies requires parties to
administrative action is patently illegal amounting to lack or exhaust all the remedies in the administrative machinery before
excess of jurisdiction, (4) when there is estoppel on the part of resorting to judicial remedies. The doctrine of exhaustion presupposes
the administrative agency concerned, (5) when there is irreparable that the court and the administrative agency have concurrent
injury, (6) when the respondent is a department secretary whose jurisdiction to take cognizance of a matter. However, in deference
acts as an alter ego of the President bear the implied and to the special and technical expertise of the administrative

1°' Joson III v. Court of Appeals, G.R. No. 160652, 13 February 2006. 1 102 Joson III v. Court of Appeals, G.R. No. 160652, 13 February 2006.
II°I Soto v. Jareno, G.R. No. L-38962, 15 September 1986. 1103
Republic v. Gallo, G.R. No. 207074, 17 January 2018.
 486 COMPENDIOUS BAR REVIEWER
ON POLITICAL LAW

agency, courts must yield to the administrative agency by

suspending the proceedings. As such, parties must exhaust all the X. Election Law
remedies within the administrative machinery before resort to
courts is allowed.'104 A. Suffrage; Qualification and Disqualification of Voters
(1987 CONST., Art. V, Sec. 1; R.A. No. 8189, Secs. 9 and 11)
Doctrine of Finality of Administrative Action
Q: What is suffrage?
Q: What is the Doctrine of Finality of Administrative Action?
A: It is a political right enabling every citizen to participate in
A: The doctrine of finality of administrative action provides that the process of government to assure that it derives its power
no resort to the courts will be allowed unless the administrative from the consent of the governed.107
action has been completed and there is nothing left to be done in
the administrative structure.11°5 Q: Who may exercise suffrage?
A party aggrieved must not merely initiate the prescribed A: Suffrage may be exercised by all citizens of the Philippines
administrative procedure to obtain relief, but must also pursue it not otherwise disqualified by law, who are at least eighteen years
to its appropriate conclusion before seeking judicial intervention of age, and who shall have resided in the Philippines for at least
in order to give the administrative agency an opportunity to one (1) year and in the place wherein they propose to vote for at
decide the matter by itself correctly and prevent unnecessary and least six (6) months immediately preceding the election. No
premature resort to the courts."' literacy, property, or other substantive requirement shall be
imposed on the exercise of suffrage.11°8
In other words, a qualified voter must: (a) be a Filipino citizen;
(b) not be disqualified by law; and (c) have resided in the
Philippines for at least one (1) year and in the place where they
propose to vote for at least six (6) months immediately preceding
the election.

B. Registration of Voters; Inclusion and Exclusion Proceedings

(R.A. No. 8189; R.A. No. 10367)

Q: What is registration in the context of Election Law?

A: Registration refers to the act of accomplishing and filing of a
sworn application for registration by a qualified voter before the

1104 1 107
Provincial Bus Operators Association of the Philippines v. Department of Labor Pungutan v. Abubakar, G.R. No. L-33541, 20 January 1972.
and Employment, G.R. No. 202275, 17 July 2018. 1 108 CONST., Art. V, Sec. 1.
I 10$ =Employees Association v. Bathan-Velasco, G.R. No. 108765, 27 August 1999.
1106 Zabat v. Court of Appeals, G.R. No. 122089, 23 August 2000. 487
 488 COMPENDIOUS BAR REVIEWER ELECTION LAW 489
ON POLITICAL LAW

election officer of the city or municipality wherein he resides and country solely by reason of his occupation, profession, employment
including the same in the book of registered voters upon in private or public service, educational activities, work in the
approval by the Election Registration Board.11' military or naval reservations within the Philippines, service in
the Armed Forces of the Philippines, the National Police Forces,
Q: Does registration confer the right to vote?
or confinement or detention in government institutions in
A: No. One may be a qualified voter without exercising the right accordance with law, shall not be deemed to have lost his
to vote. Registering does not confer the right; it is but a condition original residence.
precedent to the exercise of the right. Registration regulates Any person, who, on the day of registration may not have
the exercise of the right of suffrage. It is not a qualification for
reached the required age or period of residence but, who, on the
such right.111°
day of the election shall possess such qualifications, may register
As to the procedural limitation, the right of a citizen to vote is as a voter.113
necessarily conditioned upon certain procedural requirements
he must undergo among others, the process of registration. Q: What is validation in the context of Election Law?
Specifically, a citizen in order to be qualified to exercise his right A: Validation is defined as "the process of taking the biometrics
to vote, in addition to the minimum requirements set by the of registered voters whose biometrics have not yet been captured".
fundamental charter, is obliged by law to register, at present, On the other hand, biometrics refers to a quantitative analysis
under the provisions of Republic Act No. 8189, otherwise known that provides a positive identification of an individual such as
as the Voters Registration Act of 1996.1111 voice, photograph, fingerprint, signature, iris, and/or such other
identifiable features.''''
Q: When is registration not allowed?
A: No registration shall be conducted during the period starting Q: Is validation mandatory for voters?
one hundred twenty (120) days before a regular election and A: Yes. Biometric registration is mandatory for new voters.
ninety (90) days before a special election.112 Meanwhile, existing registered voters who fail to submit for
validation will be deactivated.' '15
Q: Who may register?
A: All citizens of the Philippines not otherwise disqualified by Q: What are the causes for deactivation of voter registration?
law who are at least eighteen (18) years of age, and who shall A: The following persons will be subject to deactivation of
have resided in the Philippines for at least one (1) year, and in registration:
the place wherein they propose to vote, for at least six (6) months
immediately preceding the election, may register as a voter. Any 1. Any person who has been sentenced by final judgment
person who temporarily resides in another city, municipality or to suffer imprisonment for not less than one (1) year,
such disability not having been removed by plenary
1109
R.A. No. 8189, hereinafter "The Voter's Registration Act of 1996", Sec. 3(a).
i l io Yra
v. Abano, G.R. No. 30187, 15 November 1928. I I 13 The Voter's Registration Act of 1996, Sec. 9
Kabataan Party-List v. COMELEC, G.R. No, 221318, 16 December 2015. 114 Kabataan Party-List v. COMELEC, G.R. No. 221318, 16 December 2015.
1112 The Voter's Registration Act of 1996, Sec. 8. MI5 R.A. No. 10367, Secs. 7, 10.
 490 COMPENDIOUS BAR REVIEWER ELECTION LAW 491
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pardon or amnesty: Provided, however, That any such Inclusion and Exclusion Proceedings
person disqualified to vote shall automatically reacquire
the right to vote upon expiration of five (5) years after Q: What are inclusion and exclusion proceedings?
service of sentence as certified by the clerks of courts of
the Municipal/Municipal Circuit/ Metropolitan/ Regional A: Voters' inclusion/exclusion proceedings essentially involve
Trial Courts and the Sandiganbayan1116; the issue of whether a petitioner shall be included in or excluded
from the list of voters based on the qualifications required by law and
2. Any person who has been adjudged by final judgment by the facts presented to show possession of these qualifications."'
a competent court or tribunal of having caused/ committed
any crime involving disloyalty to the duly constituted Q: When may a person file inclusion and exclusion proceedings?
government such as rebellion, sedition, violation of the A: Inclusion - Any person whose application for registration
anti-subversion and firearms laws, or any crime against
has been disapproved by the Board or whose name has been
national security, unless restored to his full civil and stricken out from the list may file with the court a petition to
political rights in accordance with law; Provided, That include his name in the permanent list of voters in his precinct at
he shall regain his right to vote automatically upon any time except one hundred five (105) days prior to a regular
expiration of five (5) years after service of sentence1117; election or seventy-five (75) days prior to a special election:1' 1
3. Any person declared by competent authority to be insane
Exclusion - Any registered voter, representative of a political
or incompetent unless such disqualification has been party or the Election Officer, may file with the court a sworn
subsequently removed by a declaration of a proper authority petition for the exclusion of a voter from the permanent list of
that such person is no longer insane or incompetent1118; voters giving the name, address, and the precinct of the challenged
4. Any person who did not vote in the two (2) successive voter at any time except one hundred (100) days prior to a regular
preceding regular elections as shown by their voting records. election or sixty-five (65) days before a special election.'122
For this purpose, regular elections do not include the
Q: Which courts have jurisdiction over inclusion and
Sangguniang Kabataan (SK) elections;
exclusion proceedings?
5. Any person whose registration has been ordered excluded
by the Court; and A: The Municipal and Metropolitan Trial Courts shall have
original and exclusive jurisdiction over all cases of inclusion and
6. Any person who has lost his Filipino citizenship. 1119 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

1 1 16 The Voter's Registration Act of 1996, Sec. 11.

1 1 17
1 120
1 1 18
Panlaqui v. COMELEC, G.R. No. 188671, 24 February 2010.
Id 1 121 The Voter's Registration Act of 1996, Sec. 34.
1 1 19
The Voter's Registration Act of 1996, Sec. 17. 1 122 The Voter's Registration Act of 1996, Sec. 35.
 492 COMPENDIOUS BAR REVIEWER ELECTION LAW 493
ON POLITICAL LAW

Trial Court shall decide the appeal within ten (10) days from the 3. Those who have committed and are convicted in a final
time it is received, and the decision shall immediately become final judgment by a Philippine court or tribunal of an offense
and executory. No motion for reconsideration shall be entertained:1' 3 punishable by imprisonment of not less than one (1)
year, such disability not having been removed by
1. Overseas Absentee Voting (R.A. No. 9189; R.A. No. 10590) plenary pardon or amnesty: Provided, however, That any
person disqualified to vote hereunder shall automatically
Q: What is Overseas Absentee Voting?
acquire the right to vote upon the expiration of five (5)
A: Overseas Absentee Voting refers to the process by which years after service of sentence; and
qualified citizens of the Philippines abroad exercise their right to
4. Any citizen of the Philippines abroad previously declared
vote. Thus, a citizen of the Philippines who is qualified to register
insane or incompetent by competent authority in the
and vote, not otherwise disqualified by law, who is abroad on the
Philippines or abroad, as verified by the Philippine embassies,
day of elections, may vote as an Overseas Absentee Voter.1124
consulates or foreign service establishments concerned,
Q: Who are the candidates that can be voted for by local unless such competent authority subsequently certifies
and overseas absentee voters? that such person is no longer insane or incompetent:12'

A: They may vote for president, vice-president, senators, and 2. Local Absentee Voting (E.O. No. 157, Series of 1987;
party-list representatives. They can likewise vote in all national R.A. No. 7166, Sec. 12; R.A. No. 10380)
referenda and plebiscites.' X25
Q: What is Local Absentee Voting?
Q: Who are disqualified from voting under the Overseas
A: Local Absentee Voting refers to a system of voting whereby
Absentee Voting Act of 2013?
government officials and employees are allowed to vote for
A: The following shall be disqualified from voting: national positions in places where they are not registered voters
but where they are temporarily assigned to perform election
1. Those who have lost their Filipino citizenship in accordance duties on election day, or in case of media voters, where they
with Philippine laws; will not be able to vote due to the performance of their functions
2. Those who have expressly renounced their Philippine in covering and reporting on the elections.' '27
citizenship and who have pledged allegiance to a foreign Q: Who can members of the Armed Forces of the Philippines
country, except those who have reacquired or retained and the Philippine National Police vote for as local absentee
their Philippine citizenship under Republic Act No. voters?
9225, otherwise known as the "Citizenship Retention
and Reacquisition Act of 2003"; A: Absentee voting, as provided for in Executive Order No. 157
dated 30 March 1987, shall apply to the elections for President,

1 123 1 126
The Voter's Registration Act of 1996, Sec. 33. The Overseas Absentee Voting Act of 2013, Sec. 5.
1 124 1
R.A. No. 10590, hereinafter "The Overseas Absentee Voting Act of 2013", Sec. 3. Executive Order No. 157, Series of 1987, See R..4. 7166, Sec. 12. See also
127
1 125
The Overseas Absentee Voting Act of 2013, Sec. 4. COMELEC Resolution No. 10433.
 494 COMPENDIOUS BAR REVIEWER ELECTION LAW 495
ON POLITICAL LAW

Vice-President and Senators only and shall be limited to detainee whose registration record is not transferred/deactivated/
members of the Armed Forces of the Philippines and the Philippine cancelled/deleted.113'
National Police and other government officers and employees
who are duly registered voters and who, on election day, may Q: What is Escorted Voting?
temporarily be assigned in connection with the performance of
A: This refers to the voting mechanism for detainee voters who
election duties to places where they are not registered voters.1128
are residents/registered voters of municipalities/cities other than
Q: Who can members of the media vote for as local absentee the town/city of incarceration; and/or for detainee voters in jail
voters? facilities where no special polling places are established.1132

A: Members of media, media practitioners, including the technical Such detainee voters may vote, provided, first, they must obtain
and support staff, who are duly registered voters and who, on court orders allowing them to vote in the polling place where
election day, may not be able to vote due to the performance of they are registered. Second, it should be logistically feasible on
their functions in covering and reporting on the elections, may the part of the jail/ prison administration to escort the detainee
vote as local absentee voters; Provided, That they shall be allowed voter to the polling place where he is registered. Finally,
to vote only for the positions of President, Vice President, reasonable measures shall be undertaken by the jail/prison
Senators and Party-List Representative. '129 administration to secure the safety of the detainee voters, prevent
their escape and ensure public safety.' '33
3. Persons Deprived of Liberty Voting (COMELEC Resolution
No. 9371, as may be amended) Q: May detainee voters vote for candidates both in the local
and national levels?
Q: Who is a detainee in the context of Election Law?
A: Yes, under COMELEC Resolution No. 9371 dated 06 March 2012.
A: A detainee refers to any person: (1) confined in jail, formally
charged for any crime/s and awaiting/undergoing trial; or (2) On 19 April 2016, the Supreme Court issued a Temporary Restraining
serving a sentence of imprisonment for less than one (1) year; or Order (TRO), which effectively enjoined the Commission on
(3) whose conviction of a crime involving disloyalty to the duly Elections (COMELEC), the Bureau of Corrections, the Bureau
constituted government such as rebellion, sedition, violation of of Jail Management and Penology, and different municipal, city,
the firearms laws or any crime against national security or for and provincial jails from allowing detainees to vote for
any other crime is on appeal. 13° candidates in the local level. During the effectivity of this TRO,
detainee voters were only allowed to vote for candidates on the
Q: Who are entitled to avail of Detainee Voting? national level.

A: Detainee Voting (either through the special voting place

inside jails or escorted voting) may be availed of by any registered

R.A. No. 7166, Sec. 12. 1 131

1128 COMELEC Resolution No. 9371, Rule 1, Sec. 1(a).
1 129R.A. No. 10380, Sec. 2. 1 132 COMELEC Resolution No. 9371, Rule 1, Sec. 1(c).
1130 COMELEC Resolution No. 9371, Rule 1, Sec. 2. 133
COMELEC Resolution No. 9371, Rule 7, Sec. 1.
 496 COMPENDIOUS BAR REVIEWER ELECTION LAW 497
ON POLITICAL LAW

On 29 March 2022, The Supreme Court lifted the said TRO, regional party when its constituency is spread over the geographical
thereby allowing the COMELEC to fully implement Resolution territory of at least a majority of the cities and provinces
No. 9371 in the upcoming and succeeding elections.1134 comprising the region. ' 137
C. Political Parties and the Party-List System of Representation Q: What is a sectoral party?
(1987 CONST., Art. VI, Sec. 5(2); Art. IX-C, Sec. 2 (5));
RA. No. 7941 A: Sectoral parties or organizations may either be "marginalized
and underrepresented" or lacking in "well-defined political
Q: What is the party-list system? constituencies." It is enough that their principal advocacy pertains to
the special interest and concerns of their sector. The sectors that
A: The party-list system is a social justice tool designed not
are "marginalized and underrepresented" include labor, peasant,
only to give more law to the great masses of our people who fisherfolk, urban poor, indigenous cultural communities, handicapped,
have less in life, but also to enable them to become veritable veterans, and overseas workers. The sectors that lack "well-defined
lawmakers themselves, empowered to participate directly in the political constituencies" include professionals, the elderly, women,
enactment of laws designed to benefit them. It intends to make and the youth.
the marginalized and the underrepresented not merely passive
recipients of the State's benevolence, but active participants in A majority of the members of sectoral parties or organizations
the mainstream of representative democracy.11" that represent the "marginalized and underrepresented" must
belong to the "marginalized and underrepresented" sector they
Q: What is a party? represent. Similarly, a majority of the members of sectoral parties or
A: A party means either a political party or a sectoral party or a organizations that lack "well-defined political constituencies"
coalition of parties.136 must belong to the sector they represent. The nominees of
sectoral parties or organizations that represent the "marginalized
Q: What is a political party? and underrepresented," or that represent those who lack "well-
defined political constituencies," either must belong to their
A: A political party refers to an organized group of citizens respective sectors, or must have a track record of advocacy for
advocating an ideology or platform, principles and policies for their respective sectors. The nominees of national and regional
the general conduct of government and which, as the most parties or organizations must be bona-fide members of such
immediate means of securing their adoption, regularly nominates parties or organizations."38
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

1134 A
guinaldo v. New Bilibid Prison, G.R. No. 221201, 29 March 2022.
1135 1
Ang Bagong Bayani-OFW v. Commission on Elections, G.R. Nos. 147589 & R.A. No. 7941, Sec. 3(c).
137
147613, 26 June 2001. 1
Along Paglaum, Inc. v. Commission on Elections, G.R. Nos. 203766, 203818-
138
' 136 R.A. No. 7941, Section 3 (b). 19, 203922 & etc., 02 April 2013.
 498 COMPENDIOUS BAR REVIEWER ELECTION LAW 499
ON POLITICAL LAW

Q: What is a coalition? of those selected by the party-lists as its respective nominees;

however, it must still yield to the general limitations on
A: A coalition refers to an aggrupation of duly registered
legislation and the specific limitations on party-list organizations
national, regional, sectoral parties or organizations for political
under the Constitution, particularly the equal protection clause.
and/or election purposes:1'
Hence, when such legislation proves to be an affront to the equal
Q: What is the composition of party-list representatives in protection clause, it must nevertheless be struck down and
the House of Representatives? (1987 Constitution, Art. VI, declared unconstitutional.I I42
Section 5, par. 2)
Q: How do parties nominate their prospective representatives?
A: The party-list representatives shall constitute twenty per
A: Each registered party, organization or coalition shall submit
centum (20%) of the total number of representatives including
to the COMELEC not later than forty-five (45) days before the
those under the party list."'
election a list of names, not less than five (5), from which party-
Q: Can a political party fielding candidates in legislative list representatives shall be chosen in case it obtains the required
district elections also participate in the party-list system? number of votes.

A: No. Political parties can participate in party-list elections A person may be nominated in one (1) list only. Only persons
provided they register under the party-list system and do not who have given their consent in writing may be named in the
field candidates in legislative district elections. A political party, list. The list shall not include any candidate for any elective
whether major or not, that fields candidates in legislative district office. No change of names or alteration of the order of
elections can participate in party-list elections only through its nominees shall be allowed after the same shall have been
sectoral wing that can separately register under the party-list submitted to the COMELEC except in cases where the nominee
system. The sectoral wing is by itself an independent sectoral dies, or withdraws in writing his nomination, becomes
party and is linked to a political party through a coalition.14' incapacitated in which case the name of the substitute nominee
shall be placed last in the list. Incumbent sectoral representatives
Q: Can Congress provide additional qualifications of party-list in the House of Representatives who are nominated in the party-
nominees apart from what is stated in the Constitution? list system shall not be considered resigned."'

A: Yes. Section 5(1), Article VI of the Constitution gives Congress Q: Can a person who has lost their bid for elective office in
the plenary power to legislate on who shall be qualified to be the immediately preceding election be barred from being
elected under the party-list system and which national, regional, nominated as a party-list representative?
and sectoral parties or organizations are eligible for registration.
Thus, Congress is empowered to craft legislation providing for A: No. This classification practically discriminates against candidates
the mechanics of the party-list system, and with it, the qualifications who, upon suffering a loss from the previous elections, are

1 139 R.A. No. 7941, Sec. 3(0. "42 Albano v. Commission on Elections, G.R. No. 257610 & UDK No. 17230, 24
1140 CONST., Art. VI, Sec. 5(2). January 2023.
114i Along Paglaum, Inc. v. Commission on Elections, G.R. Nos. 203766, 203818- 1 143 R.A. No. 7941, Sec. 8, as modified by Albano v. Commission on Elections, G.R.
19, 203922 & etc., 02 April 2013. No. 257610 & UDK No. 17230, 24 January 2023.
 500 COMPENDIOUS BAR REVIEWER ELECTION LAW 501
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barred from attempting to run for an elective office. No allowed after the same shall have been submitted to the
substantial distinction can be seen to exist between candidates COMELEC except in cases where the nominee dies, withdraws
who lost in the immediately preceding election on one hand, and in writing his nomination, or becomes incapacitated; in which
those who won or did not participate therein, on the other. No case, substitution is allowed and the name of the substitute
unique circumstance exists that is attributable to losing candidates nominee shall be placed last in the list.'
in the immediately preceding election which would result in
subverting the objective of the party-list system to provide an In case of withdrawal of the original nominee, such withdrawal
effective platform for all marginalized sectors to participate in of acceptance of the nomination shall be made in writing and
lawmaking. The classification treating losing candidates in the under oath with the Law Department of COMELEC, provided
immediately preceding election differently from other candidates that the substitute nominee submits his or her certificate of
does not find any rational basis. Aside from violation of the equal nomination and acceptance.147
protection clause, the prohibition placed on losing candidates
likewise violates the constitutional guaranty of substantive due Q: Who are eligible to become substitute party-list nominees
process, as there is no rational basis that would bolster the or representatives?
objective of the party-list system for genuine representation. 1144 A: Any person can be a substitute party-list nominee or
Q: Can a party be disqualified from participating in the representative provided he/she satisfies the qualifications set
party-list elections if some of their nominees are disqualified? forth under Section 9 of R.A. No. 7941 and is not a candidate for
any elective office in the same election.1148
A: No. National, regional, and sectoral parties or organizations
shall not be disqualified if some of their nominees are Q: In case of vacancy in the seats reserved for party-list
disqualified, provided that they have at least one nominee who representatives due to death, incapacity, or resignation of
remains qualified.' such representative/s, how should such vacancy be filled?

Q: Is substitution permitted by the Party-List System Act? A: The law provides that any vacancy in the seats reserved for
When can a party-list representative nominee be substituted? party-list representatives shall be automatically filled by the next
representative from the list of nominees in the order submitted to
A: Yes, substitution is permitted by the Party-List System Act the COMELEC by the same party, organization, or coalition, who
(R.A. No. 7941). Under Section 8 thereof, each registered party, shall serve for the unexpired term. If the list is exhausted, the party,
organization or coalition shall submit to the COMELEC not later organization coalition concerned shall submit additional nominees.'149
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. No
change of names or alteration of the order of nominees shall be

1 146
R.A. No. 7941, Sec. 8.
"44 Albano v. Commission on Elections, G.R. No. 257610 & UDK No. 17230, 24 "47 Sections 10 and 11 of Comelec Resolution No. 10717 dated 18 August 2021.
January 2023. 1148 R.A. No. 7941, Sec. 8; Albano v. Commission on Elections, G.R. No. 257610 &
"45 Along Paglaum, Inc. v. Commission on Elections, G.R. Nos. 203766, 203818- UDK No. 17230, 24 January 2023.
19, 203922 & etc., 02 April 2013. 1 149 R.A. No. 7941, Sec. 8.
 502 COMPENDIOUS BAR REVIEWER ELECTION LAW 503
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Q: What is post-election substitution in the party-list system? privileged participation that election laws grant to qualified
registered parties.' 154
A: It is an exception to the general rule that a list of nominees
should be submitted to COMELEC forty-five (45) days before Q: How is registration undertaken? (R.A. No. 7941, Sec. 5)
the election. Post-election substitution occurs when a vacancy in
the seats reserved for party-list representatives arises post- A: Any organized group of persons may register as a party,
elections, and the list of nominees originally to the COMELEC organization or coalition for purposes of the party-list system by
has already been exhausted; in which case, the law requires the filing with the COMELEC not later than ninety (90) days before
submission of an additional list of substitute nominees.115° the election a petition verified by its president or secretary
stating its desire to participate in the party-list system as a
Q: Is post-election substitution permitted by the Party-List national, regional or sectoral party or organization or a coalition
System Act? of such parties or organizations, attaching thereto its constitution,
by-laws, platform or program of government, list of officers, coalition
A: Yes. While R.A. No. 7941 does not expressly permit post- agreement and other relevant information as the COMELEC may
election substitutions, Section 16 thereof is silent on when a party require: Provided, That the sectors shall include labor, peasant,
may submit additional substitute nominees in case of vacancy in fisherfolk, urban poor, indigenous cultural communities, elderly,
the seats reserved for party-list representatives and the list handicapped, women, youth, veterans, overseas workers, and
originally submitted to the COMELEC is exhausted. Thus, the professionals.
mandatory tenor of the directive for the party concerned to
submit additional nominees should govern, regardless of the fact The COMELEC shall publish the petition in at least two (2)
that the election has already concluded and/or a representative national newspapers of general circulation.
has already commenced to serve his/her term. usi
The COMELEC shall, after due notice and hearing, resolve the
1. Registration (R.A. No. 7941, Sec. 5)1152 petition within fifteen (15) days from the date it was submitted
for decision but in no case not later than sixty (60) days before
Q: How can a party join an electoral contest? election.1155
A: To join electoral contests, a party or organization must undergo a. Grounds for Refusal or Cancellation of Registration
the two-step process of registration and accreditation.1153 (R.A. No. 7941, Sec. 6)
Registration is the act that bestows juridical personality for purposes
of election laws; accreditation, on the other hand, relates to the Q: What are the grounds for the refusal or cancellation of a
party's registration?
A: The COMELEC may, motu propio or upon verified complaint
of any interested party, refuse or cancel, after due notice and
1150
Id
1 151
Id.
1152
*The computation ofparty-list seat allocation is excluded in the 2024 Political
Law Syllabus.
1153
Magdalo Para Sa Pagbabago v. Commission on Elections, G.R. No. 190793, 19 "54 Liberal Party v. Commission on Elections, G.R. No. 191771, 06 May 2010.
June 2012. "55 R.A. No. 7941, Sec. 5.
 504 COMPENDIOUS BAR REVIEWER ELECTION LAW 505
ON POLITICAL LAW

hearing, the registration of any national, regional or sectoral Q: What are the qualifications for candidates?
party, organization or coalition on any of the following grounds:
A: The Constitution prescribes the qualifications for national level
1. It is a religious sect or denomination, organization or positions (President, Vice-President, Senators, District Representatives,
association, organized for religious purposes; and Party-List Representatives). The laws passed by Congress
2. It advocates violence or unlawful means to seek its goal; provide for qualifications of local level positions (Governors,
Mayors, Vice-Mayors, etc.).
3. It is a foreign party or organization;
COMELEC cannot validly impose qualifications on candidates
4. It is receiving support from any foreign government, for national level positions in addition to what the Constitution
foreign political party, foundation, organization, whether prescribes.11ss
directly or through any of its officers or members, or indirectly
through third parties for partisan election purposes; 1. Certificate of Candidacy (B.P. Blg. 881, Sec. 73)

5. It violates or fails to comply with laws, rules or regulations Q: What is a certificate of candidacy?
relating to elections;
A: A person files a certificate of candidacy to announce his or
6. It declares untruthful statements in its petition; her candidacy and to declare his or her eligibility for the elective
office indicated in the certificate.' '59
7. It has ceased to exist for at least one (1) year; or
Q: Can a person be eligible for elective public office without
8. It fails to participate in the last two (2) preceding
filing a certificate of candidacy?
elections or fails to obtain at least two per centum (2%)
of the votes cast under the party-list system in the two A: No. A person shall not be eligible for any elective public
(2) preceding elections for the constituency in which it office unless he files a sworn certificate of candidacy within the
has registered."' period fixed by law.1160
D. Candidacy Q: When can one file his or her certificate of candidacy?
Q: Who is a candidate? A: COMELEC shall set the deadline for the filing of certificate
of candidacy/petition of registration/manifestation to participate
A: The term "candidate" refers to any person aspiring for or in the election."61
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.157

"58 Social Justice Society v. Dangerous Drugs Board, G.R. Nos. 157870, 158633
&161658, 03 November 2008.
"59 Arlene Chua v. Commission on Elections, G.R. No. 216607, 05 April 2016.
"56 R.A. No, 7941, Sec. 6. 1
160 B.P. Blg. 881, Sec. 73.
1 157 Omnibus Election Code, Sec. 79(a). 1161
R.A. No. 9369, Sec. 13 amending R.A. No. 8436, Sec. 11.
 506 COMPENDIOUS BAR REVIEWER ELECTION LAW 507
ON POLITICAL LAW

, 2. Ministerial Duty of Comelec to Receive Certificates of to a candidate shall be considered only upon that start of the
Candidacy (B.P. Big. 881, Sec. 76) aforesaid campaign period.' 165
Q: Can the COMELEC refuse to receive a certificate of candidacy? 4. Eligibility and Material Misrepresentation (B.P. Blg. 881,
A: No. The COMELEC, provincial election supervisor, election Secs. 74 and 78)
registrar or officer designated by the COMELEC, or the board of Q: What are the contents of a certificate of candidacy?
election inspectors shall have the ministerial duty to receive and
acknowledge receipt of the certificate of candidacy. 1162 A: The certificate of candidacy shall state that the person filing
it is announcing his candidacy for the office stated therein and
The duty of the COMELEC to give due course to certificates of that he is eligible for said office; if for Member of the House of
candidacy filed in due form is ministerial in character, and that Representatives, the province, including its component cities,
while the COMELEC may look into patent defects in the highly urbanized city or district or sector which he seeks to
certificates of candidacy, it may not go into matters not represent; the political party to which he belongs; civil status; his
appearing on their face. The question of eligibility or ineligibility date of birth; residence; his post office address for all election
of a candidate is thus beyond the usual and proper cognizance of purposes; his profession or occupation; that he will support and
the COMELEC.1163 defend the Constitution of the Philippines and will maintain true
faith and allegiance thereto; that he will obey the laws, legal orders,
3. Effect of Filing of Certificate of Candidacy (B.P. Blg. 881.
and decrees promulgated by the duly constituted authorities; that
Sec. 66) he is not a permanent resident or immigrant to a foreign country;
Q: When shall the filing of a certificate of candidacy be that the obligation imposed by his oath is assumed voluntarily,
without mental reservation or purpose of evasion; and that the
considered effective?
facts stated in the certificate of candidacy are true to the best of
A: Any person holding a public appointive office or position, his knowledge.
including active members of the armed forces, and officers, and
Unless a candidate has officially changed his name through a
employees in government-owned or-controlled corporations,
shall be considered ipso facto resigned from his/her office and court approved proceeding, a certificate shall use in a certificate
must vacate the same at the start of the day of the filing of of candidacy the name by which he has been baptized, or if has
his/her certification of candidacy."64 not been baptized in any church or religion, the name registered
in the office of the local civil registrar or any other name allowed
Any person who files his certificate of candidacy within the under the provisions of existing law or, in the case of a Muslim,
period set by the COMELEC shall only be considered as a his Hadj i name after performing the prescribed religious pilgrimage:
candidate at the start of the campaign period for which he filed Provided, That when there are two or more candidates for an
his certificate of candidacy. Unlawful acts or omissions applicable office with the same name and surname, each candidate, upon
being made aware or such fact, shall state his paternal and
maternal surname, except the incumbent who may continue to
1162B.P. Blg. 881, Sec. 76.
1 163
Cipriano v. Commission on Elections, G.R. No. 158830, 10 August 2004.
"64 B.P. Blg. 881, Sec. 66. 1 165
R.A. No. 9369, Sec. 13 amending R.A. No. 8436, Sec. 11.
 508 COMPENDIOUS BAR REVIEWER ELECTION LAW 509
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use the name and surname stated in his certificate of candidacy A: Yes. A person who has filed a certificate of candidacy may,
when he was elected. He may also include one nickname or stage prior to the election, withdraw the same by submitting to the
name by which he is generally or popularly known in the locality."' 169
office concerned a written declaration under oath.
Q: What is the remedy for any material misrepresentation There is nothing in Section 73 of the Omnibus Election Code
made in a certificate of candidacy? which mandates that the affidavit of withdrawal must be filed
with the same office where the certificate of candidacy to be
A: A verified petition seeking to deny due course or to cancel a withdrawn was filed. Thus, it can be filed directly with the main
certificate of candidacy may be filed by the person exclusively office of the COMELEC, the office of the regional election
on the ground that any material representation contained therein
director concerned, the office of the provincial election
as required under Section 74 of B.P. Blg 881 is false. The supervisor of the province to which the municipality involved
petition may be filed at any time not later than twenty-five days belongs, or the office of the municipal election officer of the said
from the time of the filing of the certificate of candidacy and municipality.170
shall be decided, after due notice and hearing, not later than
fifteen days before the election:167 Q: Can a person file multiple certificates of candidacy be
eligible for all those elective positions?
Q: Is the element of deceit required in a petition to deny due
course or to cancel a certificate of candidacy? A: No. A person shall not be eligible for more than one office to
be filled in the same election, and if he files his certificate of
A: Yes. While the foregoing provisions are silent on the element of candidacy for more than one office, he shall not be eligible for
deceit, aside from the requirement of materiality, it is essential any of them.
that a false representation under Section 78 be committed with a
"deliberate attempt to mislead, misinform, or hide a fact which However, before the expiration of the period for the filing of
would otherwise render a candidate ineligible". In other words, certificates of candidacy, the person who was filed more than
the false material representation "must be made with a malicious one certificate of candidacy may declare under oath the office for
intent to deceive the electorate as to the potential candidate's which he desires to be eligible and cancel the certificate of
qualifications for public office.168 candidacy for the other office or offices.

5. Withdrawal of Certificates of Candidacy (B.P. Blg. 881, The filing or withdrawal of a certificate of candidacy shall not
Sec. 73) affect whatever civil, criminal, or administrative liabilities which
a candidate may have incurred.' 17'
Q: May a certificate of candidacy be withdrawn?

1 166 B.P.Blg. 881, Sec. 74.

1167 B.P. Blg. 881, Sec. 78. 1 169 B.P. Blg. 881, Sec. 73.
1168 Siburna v. Commission on Elections, G.R. No. 261344, 24 January
2023; citing 1 170 Go v. COMELEC, G.R. No. 147741, 10 May 2001.
Hayudini v. Commission on Elections, G.R. No. 207900, 22 April 2014. 1 171
B.P. Blg. 881, Sec. 73.
 510 COMPENDIOUS BAR REVIEWER ELECTION LAW 511
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6. Effects of Denial and Cancellation of Certificate of candidate, or, in the case of candidates to be voted for by the
Candidacy due to Material Misrepresentation entire electorate of the country, with the COMELEC.11 73
Q: What are the effects of the denial and cancellation of a 8. Nuisance Candidates and Effects of Declaration of Nuisance
certificate of candidacy due to material representation? Candidacy (B.P. Big. 881, Sec. 69: R.A. No. 6646, Sec. 5)
A: A cancelled certificate of candidacy is void ab initio and Q: What is a nuisance candidate?
cannot give rise to a valid candidacy, much less to valid votes.
Whether a certificate of candidacy is cancelled before or after the A: A nuisance candidate is one files a certificate of candidacy to
elections is immaterial because the cancellation on such ground place the election process in mockery or disrepute or to cause
means he was never a candidate from the very beginning. The confusion among the voters by the similarity of the names of the
votes cast in favor of the ineligible candidate are not considered registered candidates or by other circumstances or acts which
at all in determining the winner of an election for these do not clearly demonstrate that the candidate has no bona fide intention
constitute the sole and total expression of the sovereign voice.172 to run for the office for which the certificate of candidacy has
been filed and thus prevent a faithful determination of the true
7. Substitution of Candidates (B.P. B12. 881, Sec. 77) will of the electorate.'''
Q: When can substitution or withdrawal of candidates Q: Will COMELEC's declaration that one is a nuisance
take place? candidate lead to the crediting of the votes in favor of the
legitimate candidate?
A: If after the last day for the filing of certificates of candidacy,
an official candidate of a registered or accredited political party A: Yes. When a candidate is declared a nuisance candidate, it
dies, withdraws or is disqualified for any cause, only a person certainly follows that he or she cannot be voted for as he or she
belonging to, and certified by, the same political party may file a is not a candidate, consequently, the votes shall be credited to the
certificate of candidacy to replace the candidate who died, withdrew legitimate candidate. Evidently, the crediting of the votes is a
or was disqualified. The substitute candidate nominated by the logical consequence of the final decision in the nuisance case
political party concerned may file his certificate of candidacy for because the vote for the nuisance candidate is considered a vote
the office affected in accordance with the provisions of the for the legitimate candidate.' I'
Omnibus Election Code not later than midday of the day of the
election. If the death, withdrawal, or disqualification should Q: Are the grounds of unpopularity and non--membership in
occur between the day before the election and mid-day of a political party sufficient to declare one a nuisance candidate?
election day, said certificate may be filed with any board of
election inspectors in the political subdivision where he is a A: No, they are not sufficient grounds to declare one as a
nuisance candidate.

l in B.P. Blg, 881, Sec. 77.

"74 B.P. Blg. 881, Sec. 69.
1172 Hayudini v. Commission on Elections, G.R. No. 207900, 22 April 2014; citing " 75 Santos v. Commission on Elections En Banc, G.R. Nos. 235058 & 235064, 04
Aratea v. Commission on Elections, G.R. No. 195229, 09 October 2023. September 2018.
 512 COMPENDIOUS BAR REVIEWER ELECTION LAW 513
ON POLITICAL LAW

On unpopularity — Declaring one a nuisance candidate simply 2. Final judgment rendered after election — If for any
because he or she is not known to the entire country reduces the reason a candidate is not declared by final judgment to
electoral process, a sacred instrument of democracy, to a mere be disqualified before an election and he is voted for and
popularity contest. The matter of the candidate being known (or receives the winning number of votes in such election,
unknown) should not be taken against the candidate but is best the Court or Commission shall continue with the trial
left to the electorate. and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during
On non-membership in a political party — The lack of political
the pendency thereof, order the suspension of the
affiliation as inability to conduct an election campaign and
proclamation of such candidate whenever the evidence
equating this to lack of bona fide intention to run, effectively
of his guilt is strong.' 180
imposes property qualifications on aspirants, which is not
allowed under the Constitution. A candidate is considered to In Lanot v. COMELEC18`, the Supreme Court ruled that
have bona fide intent to run when he or she can demonstrate the disqualification of the elected candidate does not
seriousness in running for office. Neither the law nor the election entitle the candidate who obtained the second highest
rules impose membership in a political party as a requirement on number of votes to occupy the office vacated because of
persons intending to run for public office.'16 the disqualification. Votes cast in favor of a candidate
who obtained the highest number of votes, against whom
9. Disqualification of Candidates; Effects a petition for disqualification was filed before the
election, are presumed to have been cast in the belief that
Q: Explain the effects of a disqualification case.1177
he was qualified. For this reason, the second placer
A: Under Section 6 of the Electoral Reforms Law of 1987, a fmal cannot be declared elected.
judgment on a disqualification case has the following effects:
E. Campaign
1. Final judgment rendered before election — Any
candidate who has been declared by final judgment to be Q: What is an election campaign?
disqualified shall not be voted for, and the votes cast for
A: An election campaign, or partisan political activity, refers to
him shall not be counted.178
an act designed to promote the election or defeat of a particular
In Maquiling v. COMELEC1179, the Supreme Court ruled candidate or candidates to a public office which shall include:
that if such winning candidate is later on adjudged to be
1. Forming organizations, associations, clubs, committees
disqualified, the second placer, who is actually the first-
or other groups of persons for the purpose of soliciting
placer among the qualified candidates, will be proclaimed
votes and/or undertaking any campaign for or against a
as the winner.
candidate;

1 176Marquez v. COMELEC, G.R. No. 258435, 28 June 2022.

1 177BAR 1991.
1178 Electoral Reforms Law, Sec. 6. 1180 Electoral Reforms Law, Sec. 6.
J179 Maquiling v. COMELEC, G.R. No. 195649, 16 April 2013. till Lanot v. COMELEC, G.R. No. 164858, 16 November 2006.
 514 COMPENDIOUS BAR REVIEWER ELECTION LAW 515
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2. Holding political caucuses, conferences, meetings, rallies, 2007, a date prior to the start of the campaign period and
parades, or other similar assemblies, for the purpose of right before filing her certificate of candidacy, P held a
soliciting votes and/or undertaking any campaign or motorcade around Sta. Monica as it was the usual practice in
propaganda for or against a candidate; the said municipality. For this reason, A filed a petition for
disqualification against P for engaging in the prohibited act
3. Making speeches, announcements or commentaries, or
of premature campaigning under Section 80 of the Omnibus
holding interviews for or against the election of any
Election Code.
candidate for public office;
While the case was pending, P won the elections and was
4. Publishing or distributing campaign literature or materials
proclaimed the duly elected mayor of Sta. Monica. The case
designed to support or oppose the election of any
reached the Supreme Court, which then rendered a decision
candidate; or
disqualifying P for engaging in premature campaigning. The
5. Directly or indirectly soliciting votes, pledges or support Court held that her motorcading is a form of an election
for or against a candidate. campaign done outside of the campaign period which
violated Section 80 of the Omnibus Election Code. P then
However, the foregoing acts shall not be considered an election filed a motion for reconsideration to assail the decision. Was
campaign if done for the purpose of enhancing the chances of the Supreme Court correct in disqualifying P for engaging in
aspirants for nomination for candidacy to a public office by a premature campaigning?
political party, aggroupment, or coalition of parties. Public expressions
or opinions or discussions of probable issues in a forthcoming A: No. A person who files a certificate of candidacy is not
election or on attributes of or criticisms against probable candidates considered a candidate until the start of the campaign period. It is
proposed to be nominated in a forthcoming political party only after the said person officially becomes a candidate, at the
convention shall also not be considered an election campaign. 1182 start of the campaign period, can his disqualification be sought
for acts constituting premature campaigning. In other words, a
Premature Campaigning candidate is liable for an election offense only for acts done
during the campaign period, not before. The law is clear as
Q: What is premature campaigning? daylight—any election offense that may be committed by a
A: Premature campaigning refers to any election campaign or candidate under any election law cannot be committed before the
partisan political activity for or against any candidate outside of start of the campaign period.
the campaign period.183 It is prohibited under the Omnibus This finds basis in Section 79 of the Omnibus Election Code which
Election Code and is considered an election offense. defines a candidate as any person aspiring for or seeking an elective
public office, and who has filed a certificate of candidacy.
Q: P and A were candidates in the 2007 mayoral elections in
Moreover, under Section 15 of Republic Act No. 8436, as
the Municipality of Sta. Monica. The campaign period began
amended, any person who filed his certificate of candidacy shall
on 30 March 2007, and ended on 12 May 2007. On 29 March
only be considered as a candidate at the start of the campaign
period for which he filed his certificate of candidacy. Unlawful
"82 B.P. Blg. 881, Sec. 79.
"83 B.P. Blg. 881, Sec. 80.
 516 COMPENDIOUS BAR REVIEWER ELECTION LAW 517
ON POLITICAL LAW

acts or omissions applicable to a candidate shall take effect only Any provision of law to the contrary notwithstanding, any
upon the start of the aforesaid campaign period.184 contribution in cash or in kind to any candidate or political
party or coalition of parties for campaign purposes, duly
In this case, the campaign period began on 30 March 2007 and reported to the COMELEC, shall not be subject to the payment
ended on 12 May 2007. P filed her certificate of candidacy on 29
of any gift tax.
March 2007, or prior to the campaign period. Following the
above discussion, she only became a candidate who is subject to Q: What are the lawful expenditures of a candidate or
laws on election offenses at the beginning of the campaign treasurer of a political party? Is the list exclusive?
period, or on 30 March 2007. Her acts prior to the campaign
period are not to be considered as premature campaigning as A: The following are lawful expenditures of a candidate or
they fall within the realm of a citizen's protected freedom of treasurer of a political party:
expression. Thus, the Supreme Court erred in disqualifying her
1. Travelling expenses of the candidates and campaign
on the said ground.
personnel in the course of the campaign and for personal
1. Limitations on Expenses and Prohibited Contributions expenses incident thereto;
(R.A. No. 7166, Sec. 13) 2. Compensation of campaigners, clerks, stenographers,
messengers, and other persons actually employed in the
Q: What are the authorized expenses of candidates and
campaign;
political parties?
A: Under Section 13 of R.A. No. 7166, the aggregate amount 3. Telegraph and telephone tolls, postage, freight and express
delivery charges;
that a candidate or registered political party may spend for
election campaign shall be as follows: 4. Stationery, printing and distribution of printed matters
relative to candidacy;
1. For candidates — Ten pesos (P10.00) for President and
Vice-President; and for other candidates, Three pesos 5. Employment of watchers at the polls;
(P3.00) for every voter currently registered in the
constituency where he filed his certificate of candidacy: 6. Rent, maintenance and furnishing of campaign headquarters,
Provided, That, a candidate without any political party office or place of meetings;
and without support from any political party may be allowed
7. Political meetings and rallies and the use of sound systems,
to spend Five pesos (P5.00) for every such voter; and lights and decorations during said meetings and rallies;
2. For political parties — Five pesos (P5.00) for every voter
8. Newspaper, radio, television and other public advertisements;
currently registered in the constituency or constituencies
where it has official candidates. 9. Employment of counsel;
10. For copying and classifying list of voters, investigating
and challenging the right to vote of persons registered in
the lists; or
1184
Penera v. COMELEC, G.R. No. 181613, 25 November 2009.
 518 COMPENDIOUS BAR REVIEWER ELECTION LAW 519
ON POLITICAL LAW

11. For printing sample ballots in such color, size and the government or any of its divisions, subdivisions or
maximum number as may be authorized by COMELEC. instrumentalities including government-owned or controlled
corporations;
The above list is exclusive, and any expenditure, direct or indirect,
for purposes not stated above shall be considered unlawful.'1" 6. Educational institutions which have received grants of
public funds amounting to no less than P100,000.00;
Q: Who are prohibited from making contributions for purposes
of an election campaign or partisan political activity? 7. Officials or employees in the Civil Service, or members
of the Armed Forces of the Philippines; and
A: Under Section 95 of the Omnibus Election Code, no
contribution for purposes of partisan political activity shall be 8. Foreigners and foreign corporations.
made directly or indirectly by any of the following:
It shall also be unlawful for any person to solicit or receive any
1. Public or private financial institutions: Provided, however, contribution from any of the persons or entities enumerated
that nothing shall prevent the making of any loan to a above. It shall also be unlawful for any person, including a
candidate or political party by any such public or private political party or public or private entity to solicit or receive,
fmancial institutions legally in the business of lending directly or indirectly, any aid or contribution of whatever form or
money, and that the loan is made in accordance with laws nature from any foreign national, government or entity for the
1186
and regulations and in the ordinary course of business; purposes of influencing the results of the election.
2. Natural and juridical persons operating a public utility or Q: Can a person make a contribution to an election campaign
in possession of or exploiting any natural resources of under an alias?
the nation;
A: No. Under Section 98 of the Omnibus Election Code, no
3. Natural and juridical persons who hold contracts or sub- person shall make any contribution in any name except his own
contracts to supply the government or any of its divisions, nor shall any candidate or treasurer of a political party receive a
subdivisions or instrumentalities, with goods or services, contribution or enter or record the same in any name other than
or to perform construction or other works; that of the person by whom it was actually made.
4. Natural and juridical persons who have been granted Q: What are the prohibited means of raising funds? What is
franchises, incentives, exemptions, allocations or similar the period of the prohibition?
privileges or concessions by the government or any of its
divisions, subdivisions or instrumentalities, including A: The following means of raising funds for election campaigns
government-owned or controlled corporations; shall be prohibited:
5. Natural and juridical persons who, within one (1) year 1. Cinematographic, theatrical or other performances;
prior to the date of the election, have been granted loans
2. Cockfights;
or other accommodations in excess of P100,000.00 by

"85 B.P. Blg. 881, Sec. 102. 1 186

B.P. Blg. 881, Sec. 96.
 520 COMPENDIOUS BAR REVIEWER ELECTION LAW 521
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3. Lotteries; shall also apply to treasurers, agents or representatives of any

political party.
4. Boxing bouts;
c) Are there exceptions to the prohibition on donations?
5. Bingo;
A: Yes. Normal and customary religious dues or contributions,
6. Beauty contests;
such as religious stipends, tithes or collections on Sundays or
7. Entertainment and games; and other designated collection days, as well as periodic payments
for legitimate scholarships established and school contributions
8. Dances. habitually made before the prohibited period, are excluded from
This prohibition shall apply from the commencement of the the prohibition.1188
election period up to and including the election day.1187
2. Lawful Election Propaganda (R.A. No. 9000
Q: A, a senatorial candidate for the 2010 elections, undertook Q: What are lawful forms of election propaganda?
to donate a parcel of land to Hospital X. This donation was
made on the day of the commencement of the campaign A: The following are lawful forms of election propaganda,
period of the said elections. whether made on television, cable television, radio, newspapers
or any other medium:
a) Can A donate the parcel of land without violating
election laws? 1. Pamphlets, leaflets, cards, decals, stickers or other
written or printed materials the size of which does not
A: No. Under Section 104 of the Omnibus Election Code, no exceed eight and one-half inches in width and fourteen
candidate shall during the campaign period, on the day before inches in length;
and on the day of the election, directly or indirectly, make any
donation, contribution or gift in cash or in kind, or undertake or 2. Handwritten or printed letters urging voters to vote for
contribute to the construction or repair of roads, bridges, school or against any particular political party or candidate for
buses, puericulture centers, medical clinics and hospitals, churches public office;
or chapels cement pavements, or any structure for public use or
3. Cloth, paper or cardboard posters whether framed, or
for the use of any religious or civic organization.
posted, with an area not exceeding two (2) feet by three
b) What if the donor is A's spouse, would the donation (3) feet, except that, at the site and on the occasion of a
be compliant to election laws? public meeting or rally, or in announcing the holding of
said meeting or rally, streamers not exceeding three (3)
A: No. The prohibition under Section 104 extends to a candidate's feet by eight (8) feet in size, shall be allowed: Provided,
spouse or any relative within the second civil degree of consanguinity That said streamers may be displayed five (5) days before
or affinity, or his campaign manager, agent or representative. It the date of the meeting or rally and shall be removed
within twenty-four (24) hours after said meeting or rally;

I I" B.P. Blg. 881, Sec. 97. I I" B.P. 881, Sec. 104.
 522 COMPENDIOUS BAR REVIEWER ELECTION LAW 523
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4. Paid advertisements in print or broadcast media: Provided, by" followed by the true and correct name and address
That the advertisements shall follow the requirements set of the broadcast entity:1192 and
forth in Section 4 of the Fair Election Act; and
5. Print, broadcast or outdoor advertisements donated to the
5. All other forms of election propaganda not prohibited by candidate or political party shall not be printed, published,
the Omnibus Election Code or the Fair Election Act. broadcast or exhibited without the written acceptance by
the said candidate or political party. Such written
Q: What are the limitations on the above enumerated acceptance shall be attached to the advertising contract
election propaganda? and shall be submitted to the COMELEC.1193
A: The following are limitations on the above enumerated Q: The Diocese of Bacolod posted two (2) tarpaulins within
election propaganda: the private compound of San Sebastian Cathedral of Bacolod.
1. They must not exceed the limitation on authorized The first tarpaulin contains the message, "IBASURA RH Law",
expenses of candidates and political parties;11" while the second tarpaulin contains the message "Conscience
Vote" followed by a list of candidates and party-lists grouped
2. They must be subject to the supervision and regulation as Team Buhay, or those against the RH Law, and Team
of the COMELEC;11" Patay, or those in favor of the RH Law.
3. Any newspaper, newsletter, news weekly, gazette or The COMELEC issued a notice for the removal of the tarpaulins
magazine advertising, posters, pamphlets, comic books, because they were over the allowable size of campaign
circulars, handbills, bumper stickers, streamers, simple materials. It also threatened to file an election offense against
list of candidates or any published or printed political the Diocese of Bacolod should they fail to comply with the
matter and any broadcast of election propaganda by notice. In issuing the notice, the COMELEC averred that it
television or radio for or against a candidate or group of has the power to set a limit on the right to free speech during
candidates to any public office shall bear and be election period.
identified by the reasonably legible or audible words
"political advertisement paid for," followed by the true a) Are the tarpaulins considered election propaganda?
and correct name and address of the candidate or party A: No. While the tarpaulin may influence the success or failure
for whose benefit the election propaganda was printed of the named candidates and political parties, this does not
or aired;1191 necessarily mean it is election propaganda. The tarpaulin was not
4. If the broadcast is given free of charge by the radio or paid for or posted "in return for consideration" by any candidate,
television station, it shall be identified by the words political party, or party-list group. Labelling all expressions of
"airtime for this broadcast was provided free of charge private parties that tend to have an effect on the debate in the
elections as election paraphernalia would be too broad a remedy
that can stifle genuine speech like in this case. The message of

"89 R.A. No. 9006, hereinafter "Fair Election Act", Sec. 3.

1'90 Fair
Election Act, Sec. 3. "92 Fair Election Act, Sec. 4.2.
" 9 ' Fair Election Act, Sec. 4.1. II93 Fair Election Act, Sec. 4.3.
 524 COMPENDIOUS BAR REVIEWER ELECTION LAW 525
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the Diocese of Bacolod, taken as a whole, is an advocacy of a A: The COMELEC's prohibition on posting of decals and stickers
social issue that it deeply believes in. It primarily advocates a on "mobile" places whether public or private except in designated
stand on a social issue. Its effect on the election or non-election areas provided for by the COMELEC itself is null and void on
of a candidate is only secondary. 1194 constitutional grounds.
b) Does the COMELEC have legal basis to regulate the First, the prohibition unduly infringes on the citizen's fundamental
expression made by the Diocese of Bacolod? right of free speech. There is no public interest substantial enough
A: No. The power granted by the Constitution and by-laws such to warrant the kind of restriction involved in this case. Under the
as the Fair Election Act and the Omnibus Election Code, only clear and present danger rule, not only must the danger be
pertain to the COMELEC's power to regulate expression of patently clear and pressingly present but the evil sought to be
candidates and political parties. The Diocese of Bacolod are not avoided must be so substantive as to justify a restriction on the
candidates, nor do they belong to any political party. The COMELEC freedom of expression.
does not have the authority to regulate the enjoyment of the In this case, the posting of decals and stickers on mobile places
preferred right to freedom of expression exercised by a non- like cars and other moving vehicles does not endanger any
candidate in this case.1195 substantial government interest. There is no clear public interest
threatened by such activity so as to justify the curtailment of the
Q: A assailed the constitutionality of the following COMELEC
cherished citizen's right of free speech and expression.
Resolution contending that it infringes on the freedom of speech:
Second, the resolution is void for overbreadth. A statute is
"Prohibited forms of election propaganda. It is unlawful: considered void for overbreadth when it offends the constitutional
xxx principle that a governmental purpose to control or prevent
activities constitutionally subject to state regulations may not be
(I) To draw, paint, inscribe, post, display or publicly exhibit achieved by means which sweep unnecessarily broadly and
any election propaganda in any place, whether public or thereby invade the area of protected freedoms.
private, mobile or stationary, except in the COMELEC common
posted areas and/or billboards, at the campaign headquarters In this case, the resolution prohibits the posting of decals and
of the candidate or political party, organization or coalition, stickers not more than eight and one-half (8-1/2) inches in width
or at the candidate's own residential house or one of his and fourteen (14) inches in length in any place, including mobile
residential houses, if he has more than one: Provided, that places whether public or private except in areas designated by
such posters or election propaganda shall not exceed two (2) the COMELEC. Verily, the restriction as to where the decals and
feet by three (3) feet in size." stickers should be posted is so broad that it encompasses even
the citizen's private property, which in this case is a privately-
Is the Resolution constitutional? owned vehicle.
Third, the constitutional objective to give a rich candidate and a
poor candidate equal opportunity to inform the electorate as
regards their candidacies is not impaired by posting decals and
I194 Diocese of Bacolod v. COMELEC, G.R. No. 205728, 21 January 2015.
1 195
stickers on cars and other private vehicles. Thus, the prohibition
Id.
 526 COMPENDIOUS BAR REVIEWER ELECTION LAW 527
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by the COMELEC becomes censorship which cannot be justified 4. To show or display publicly any advertisement or propaganda
by the Constitution.11" for or against any candidate by means of cinematography,
audio-visual units or other screen projections except
Q: Can COMELEC validly remove or destroy privately- telecasts which may be allowed; and
owned campaign materials displayed on private property
owned by private persons? 5. For any radio broadcasting or television station to sell or
give free of charge airtime for campaign and other
A: R.A. No. 9006 only permits the COMELEC to regulate the political purposes except as authorized in the Omnibus
election propaganda owned by candidates and political parties. Election Code under the rules and regulations promulgated
It does not allow the COMELEC to regulate the political speech by the Commission pursuant thereto.
of private persons on private property.197
Any prohibited election propaganda gadget or advertisement
Q: What are prohibited forms of election propaganda? shall be stopped, confiscated or torn down by the representative
of the COMELEC upon specific authority of the COMELEC.
A: Under Section 85 of the Omnibus Election Code, it shall be
unlawful: Q: Section 5.4 of the Fair Election Act reads as follows:
1. To print, publish, post or distribute any poster, pamphlet, "5.4. Surveys affecting national candidates shall not be
circular, handbill, or printed matter urging voters to vote published fifteen (15) days before an election and surveys
for or against any candidate unless they bear the names affecting local candidates shall not be published seven (7)
and addresses of the printer and payor as required in days before an election."
Section 84 thereof;
Is the above provision prohibiting publication of election
2. To erect, put up, make use of, attach, float or display any surveys within the said period constitutional?
billboard, tinplate-poster, balloons and the like, of whatever
size, shape, form or kind, advertising for or against any A: No. Section 5.4 of the Omnibus Election Code lays a prior
candidate or political party; restraint on freedom of speech, expression, and the press by
prohibiting the publication of election survey results affecting
3. To purchase, manufacture, request, distribute or accept candidates within the prescribed periods of 15 days immediately
electoral propaganda gadgets, such as pens, lighters, fans preceding a national election and 7 days before a local election.
of whatever nature, flashlights, athletic goods or materials, Because of the preferred status of the constitutional rights of
wallets, shirts, hats, bandanas, matches, cigarettes and speech, expression, and the press, such a measure is vitiated by a
the like, except that campaign supporters accompanying weighty presumption of invalidity. Thus, the Government has the
a candidate shall be allowed to wear hats and/or shirts or burden of showing justification for the enforcement of such restraint.
T-shirts advertising a candidate;
The presumption of invalidity still lies despite Art. IX-C Section
4 of the Constitution, which gives the COMELEC supervisory
power to regulate the enjoyment or utilization of franchise for the
1 196 A
of,.ong v. COMELEC, G.R. No. 103956, 31 March 1992. operation of media of communication. The said constitutional
Si. Anthony College of Roxas City, Inc. v. Commission on Elections, G.R. No.
provision is limited to ensuring equal opportunity, time, space,
1 197
258805, 10 October 2023.
528 COMPENDIOUS BAR REVIEWER ELECTION LAW 529
ON POLITICAL LAW

and the right to reply as well as uniform and reasonable rates of due notice and hearing. This is surely a less restrictive means
charges for the use of such media facilities for public information than the prohibition contained in Section 5.4. Pursuant to this
campaigns and forums among candidates. power of the COMELEC, it can confiscate bogus survey results
calculated to mislead voters.
To test the provision's validity, the Supreme Court applied the
O'Brien test, which provides that "a government regulation is Therefore, Section 5.4 is invalid because (1) it imposes a prior
sufficiently justified [1] if it is within the constitutional power of restraint on the freedom of expression, (2) it is a direct and total
the Government; [2] if it furthers an important or substantial suppression of a category of expression even though such
governmental interest; [3] if the governmental interest is suppression is only for a limited period, and (3) the governmental
unrelated to the suppression of free expression; and [4] if the interest sought to be promoted can be achieved by means other
incidental restriction on alleged First Amendment freedoms [of than suppression of freedom of expression.1198
speech, expression and press] is no greater than is essential to the
furtherance of that interest." Q: Exit polls are a form of election surveys based on
interviews with voters as they leave their respective voting
In this case, Section 5.4 fails to meet the third criterion. By precincts after casting their vote. Can the COMELEC issue a
prohibiting the publication of election survey results because of restraining order enjoining a media entity from conducting
the possibility that such publication might undermine the integrity an exit poll during elections?
of the election, Section 5.4 actually suppresses a whole class of
expression, while allowing the expression of opinion concerning A: No. The holding of exit polls and the dissemination of their
the same subject matter by newspaper columnists, radio and TV results through mass media constitute an essential part of the
commentators, armchair theorists, and other opinion takers. In freedoms of speech and of the press. Hence, the COMELEC
effect, Section 5.4 shows a bias for a particular subject matter, if cannot ban them totally in the guise of promoting clean, honest,
not viewpoint, by referring personal opinion to statistical results. orderly and credible elections. Exit polls, properly conducted and
The constitutional guarantee of freedom of expression means publicized, can be vital tools in eliminating the evils of election-
that "the government has no power to restrict expression because fixing and fraud.
of its message, its ideas, its subject matter, or its content." There are other valid and reasonable ways and means to achieve
It also fails to meet the fourth criterion. Section 5.4 aims at the the COMELEC's end of avoiding or minimizing disorder and
prevention of last-minute pressure on voters, the creation of a confusion that may be brought about by exit surveys. For
bandwagon effect, "junking" of weak or "losing" candidates, and instance, a specific limited area for conducting exit polls may be
resort to the form of election cheating called "dagdag-bawas." designated. Only professional survey groups may be allowed to
Praiseworthy as these aims of the regulation might be, they conduct the same. Pollsters may be kept at a reasonable distance
cannot be attained at the sacrifice of the fundamental right of from the voting center. They may be required to explain to voters
expression, when such aim can be more narrowly pursued by that the latter may refuse to be interviewed, and that the interview is
punishing unlawful acts, rather than speech because of apprehension not part of the official balloting process. The pollsters may be
that such speech creates the danger of such evils. Under the required to wear distinctive clothing that would show they are
Administrative Code of 1987, the COMELEC is given the power
to stop any illegal activity, or confiscate, tear down, and stop any
unlawful, libelous, misleading or false election propaganda, after "98 Social Weather Stations, Inc. v. COMELEC, G.R. No. 147571, 05 May 2001.

14,
 530 COMPENDIOUS BAR REVIEWER ELECTION LAW 531
ON POLITICAL LAW

not election officials. They may be required to undertake an 3. Failure to pay the fine stated in No. 2 within thirty (30)
information campaign on the nature of the exercise and the days from receipt of notice of such failure shall authorize
results to be obtained therefrom. These measures, together with a the COMELEC to enforce the said fine by a writ of
general prohibition of disruptive behavior, could ensure a clean, execution against the properties of the offender.'20'
safe and orderly election.199
Q: True or False. The requirement of filing a SOCE applies
3. Statement of Contributions and Expenses (R.A. No. 7166, only to a candidate who has pursued his candidacy.
Sec. 14)
A: False. Section 14 of R.A. No. 7166 states that "every
Q: What is a statement of contributions and expenses? candidate" has the obligation to file his statement of contributions
and expenditures. The law makes no distinction or qualification
A: A statement of contributions and expenses (SOCE) is a full, as to whether the candidate pursued his candidacy or withdrew
true and itemized statement of all contributions and expenditures the same, the term "every candidate" must be deemed to refer not
in connection with the election that is to be filed with the only to a candidate who pursued his campaign, but also to one
COMELEC. It is filed by a candidate or a treasurer of a political who withdrew his candidacy.
'202

party within thirty (30) days after the day of the election.'200
F. Remedies
Q: What are the effects of failure to file the Statement of
Contributions and Expenses? 1. Pre-election
A: The following are the effects of failure to file the SOCE: a. Petition for Disqualification
1. Any person elected to any public offices shall not enter
Q: Enumerate the grounds for disqualification of a candidate.12"
upon the duties of his office until he or his political party
has filed the SOCE; A: The following are the grounds for disqualification of a candidate:
2. Failure to file the SOCE shall constitute an administrative 1. Under Section 12 of the Omnibus Election Code, any
offense for which the offenders shall be liable to pay an person who has been declared by competent authority as
administrative fine ranging from One Thousand Pesos insane or incompetent, or has been sentenced by final
(P1,000.00) to Thirty Thousand Pesos (P30,000.00), in judgment for subversion, insurrection, rebellion or for
the discretion of the Commission. However, this shall any offense for which he has been sentenced to a penalty
not apply to elective barangay officials. For the second of more than eighteen (18) months or for a crime involving
and subsequent offenses, the fine shall be from Two moral turpitude, shall be disqualified to be a candidate.
Thousand Pesos (P2,000.00) to Sixty Thousand Pesos
(P60,000.00), at the discretion of the COMELEC; and 2. Under Section 68 of the Omnibus Election Code, any
candidate who, in action or protest in which he is a

1199
1201
R.A. No. 7166, Sec. 14.
'202 ,ar
ABS-CBNBroadcasting Corporation v. COMELEC, G.R No. 133486, 28 January 2000. It v. COMELEC, G.R. No. 115245, 11 July 1995.
p

1200
R.A. No. 7166, Sec. 14. 1203 BAR 1991, 2015.
532 COMPENDIOUS BAR REVIEWER ELECTION LAW 533
ON POLITICAL LAW

party, is declared by final decision of a competent court d. those fugitives from justice in criminal or non-
guilty of, or found by the COMELEC of having: political cases here or abroad; and
a. given money or other material consideration to e. those insane or feeble-minded.
influence, induce or corrupt the voters or public
officials performing electoral functions; Q: When may a petition for disqualification be filed?
b. committed acts of terrorism to enhance his candidacy; A: The petition shall be filed any day after the last day for filing
of certificates of candidacy, but not later than the date of
c. spent in his election campaign an amount in excess proclamation.12"
of that allowed by the Omnibus Election Code;
b. Petition Not to Give Due Course or Cancel Certificates of
d. solicited, received, or made any contribution prohibited
Candidacy (B.P. Blg. 881, Sec. 78)
under Sections 89, 95, 96, 97 and 104 of the
Omnibus Election Code; or Q: Enumerate the grounds for the denial to give due course
1205
e. violated any of Sections 80, 83, 85, 86 and 261, to or cancellation of a certificate of candidacy (CoC).
paragraphs (d), (e), (k), (v), and (cc), sub-paragraph A: Under the Omnibus Election Code, the following are the grounds
6 of the Omnibus Election Code, shall be disqualified for the denial to give due course to or cancellation of a CoC:
to run.
1. the CoC was filed for purposes of putting the election
3. Under the same section, any person who is a permanent process in mockery or disrepute;
resident of or an immigrant to a foreign country shall not
be qualified to run for any elective office, unless said 2. the CoC was filed to cause confusion among the voters by
person has waived his status as permanent resident or the similarity of the names of the registered candidate;
immigrant of a foreign country in accordance with the
3, the candidate is shown to be a nuisance candidate or
residence requirement provided for in the election laws.
there are circumstances or acts which clearly demonstrate
4. Under Section 40 of the Local Government Code (LGC): that the candidate has no bona fide intention to run for
the office for which the certificate of candidacy has been
a. those sentenced by final judgment for an offense filed and thus prevent a faithful determination of the true
involving moral turpitude or for an offense punishable will of the electorate; `206 and
by one (1) year or more of imprisonment;
4. the CoC is found to contain false material representations:2°7
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;
1204 COMELEC Rules of Procedure, Rule 25, Sec. 3.
1205 BAR 2009, 2015.
1206 B.P. 881, Sec. 69.
1207 B.P. 881, Sec. 78.

111
 534 COMPENDIOUS BAR REVIEWER ELECTION LAW 535
ON POLITICAL LAW

Q: When is a representation considered as false and material? means the person running was never a candidate from the very
beginning, his CoC being void ab initio. Accordingly, all votes for
A: The Supreme Court clarified that to be considered as a false such non-candidate are stray votes and should not be counted.
material representation, it (1) must involve the eligibility or Thus, such non-candidate can never be a first-placer in the elections.
qualification for office of the person who filed the certificate In other words, if a CoC void ab initio is canceled on the day, or
such as the requisite residency, age, citizenship or any other legal before the day, of the election, prevailing jurisprudence holds
qualification necessary to run for local elective office as provided in that all votes for that candidate are stray votes. If a CoC void ab
the LGC,1208 and (2) must consist of a deliberate attempt to initio is canceled one day or more after the elections, all votes
mislead, misinform, or hide a fact which would otherwise render for such candidate should also be stray votes because the CoC is
a candidate ineligible.'209 void from the very beginning. 1214
Q: When may a petition to deny or cancel a CoC be filed?12"
Q: Is a contestant precluded to question the qualifications of
A: If the action is based on the first three grounds above (i.e., a winning candidate after elections?
based on Section 69 of the Omnibus Election Code), the petition
A: No. He or she still has a chance to raise the disqualification of
shall be filed within five (5) days from the last day for the filing
the candidate even post-elections. Under the Omnibus Election
of CoCs, or in case of a substitute candidate, within five (5) days
Code, there are two instances where a petition questioning the
from the time he filed his CoC. 1211 qualifications of a registered candidate to run for the office can
If the action is based on the fourth ground (i.e., based on Section be raised: (1) before elections, by filing a petition to deny due
78 of the Omnibus Election Code), the petition shall be filed course or to cancel a CoC pursuant to Section 78 thereof; and (2)
within five (5) days from the last day for filing of CoC, but not after elections, by filing a petition for quo warranto pursuant to
later than twenty five (25) days from the time of filing thereof, or Section 253 thereof:2 '5
in case of a substitute candidate, within five (5) days from the
time the substitute candidate filed his CoC.'212 c. Petition to Declare a Nuisance Candidate (B.P. B12. 881,
Sec. 69)
Q: Explain the rule if the cancellation of a CoC is decreed
Q: What is the remedy in cases of nuisance candidates?
before election versus after election.
A: A verified petition to declare a duly registered candidate as a
A: In Aratea v. COMELEC1213, the Supreme Court ruled that
nuisance candidate under Section 69 of the Omnibus Election
because a canceled CoC cannot give rise to a valid candidacy,
Code shall be filed personally or through duly authorized
and much less to valid votes, it is immaterial whether the CoC is
representative with the Commission by any registered candidate
canceled before or after the elections considering that cancellation
for the same office within five (5) days from the last day for the
filing of CoCs.1216
'2" Villafherte v. COMELEC, G.R. No. 206698, 25 February 2014.
1209 Chua v. COMELEC, G.R. No. 216607, 05 April 2016.
'210
BAR 2009, 2015.
121 1COMELEC Rules of Procedure, Rule 24, Sec. 3. 1214 Jalosjos, Jr. v. COMELEC, G.R. Nos. 193237 & 193536, 09 October 2012.
1212 COMELEC Rules of Procedure, Rule 23, Sec. 2. 1215 Aznar v. COMELEC, G.R. No. 83820, 25 May 1990.
1213 G.R. No. 195229, 09 October 2012. 1216 R.A. No. 6646, Sec. 5.
 536 COMPENDIOUS BAR REVIEWER ELECTION LAW 537
ON POLITICAL LAW

2. During election elect, and in any of such cases the failure or suspension of
election would affect the result of the election, the Commission
a. Petition to Postpone Elections (B.P. Big. 881, Sec. 5) shall, on the basis of a verified petition by any interested party
Q: When may one file a petition to postpone elections? and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which
A: When for any serious cause such as violence, terrorism, loss resulted in a failure to elect but not later than thirty days after the
or destruction of election paraphernalia or records, force cessation of the cause of such postponement or suspension of the
majeure, and other analogous causes of such a nature that the election or failure to elect."'z►s
holding of a free, orderly and honest election should become
impossible in any political subdivision, the COMELEC, motu Q: When may a failure of election be declared?
proprio or upon a verified petition by any interested party, and A: The Supreme Court in Mutilan v. COMELEC1219 enumerated
after due notice and hearing, whereby all interested parties are the three instances where a failure of elections may be declared:
afforded equal opportunity to be heard, shall postpone the
election therein to a date which should be reasonably close to the 1. the election in any polling place has not been held on the
date of the election not held, suspended or which resulted in a date fixed on account of force majeure, violence, terrorism,
failure to elect but not later than 30 days after the cessation of fraud or other analogous causes;
the cause for such postponement or suspension of the election or
failure to elect.1z" 2. the election in any polling place has been suspended
before the hour fixed by law for the closing of the voting
b. Petition to Declare Failure of Elections (B.P. Big. 881, on account of force majeure, violence, terrorism, fraud
Sec. 6) or other analogous causes; or

Q: Who may declare a failure of election and/or call a 3. after the voting and during the preparation and transmission
special election? of the election returns or in the custody or canvass
thereof„ such election results in a failure to elect on
A: The COMELEC en bane is empowered to declare a failure account of force majeure, violence, terrorism, fraud or
of election and/or call a special election under Section 6 of the other analogous causes.
Omnibus Election Code. Section 6 of the Code prescribes the
conditions for the exercise of this power, thus: "If, on account of In all three instances, there is a resulting failure to elect. In the
force majeure, violence, terrorism, fraud or other analogous first instance, the election has not been held. In the second
causes the election in any polling place has not been held on the instance, the election has been suspended. In the third instance,
date fixed, or had been suspended before the hour fixed by law the preparation and the transmission of the election returns give
for closing of the voting, or after the voting and during the rise to the consequent failure to elect; the third instance is
preparation and the transmission of the election returns or in the interpreted to mean that nobody emerged as a winner.'"
custody or canvass thereof, such election results in a failure to

1218 Pasandalan v. COMELEC, G.R. No. 150312, 18 July 2002.

1219 G.R. No. 171248, 02 April 2007.
1217 B.P. Blg. 881, Sec. 5. 1220 Id.
 538 COMPENDIOUS BAR REVIEWER ELECTION LAW 539
ON POLITICAL LAW

Q: Give the requisites before a failure of election may be 3. Pre-Proclamation Controversy

declared.
Q: Define pre-proclamation controversy.
A: Before COMELEC can act on a verified petition seeking to
declare a failure of election, two (2) conditions must concur: A: Under Section 241 of the Omnibus Election Code and Section
first, no voting has taken place in the precinct or precincts on the 1, Rule 3 of the COMELEC Rules of Procedure on Disputes in
date fixed by law or, even if there was voting, the election an Automated Election System, a pre-proclamation controversy
nevertheless results in failure to elect; and, second, the votes not refers to any question pertaining to or affecting the proceedings
cast would affect the result of the election.1221 Section 6 of the of the board of canvassers or any matter in relation to the
Omnibus Election Code adds a third condition: the failure of preparation, transmission, receipt, custody and appreciation of
election must be on account of force majeure, violence, terrorism, the election returns which may be raised by any candidate or by
fraud, or other analogous causes. any registered political party or coalition of political parties or by
any accredited and participating party list group.
Q: Explain the rules on the holding of a special election in
223
the context of a failure of election. Q: What issues are covered by a pre-proclamation controversy?'

A: In Lucero v. COMELEC,'222 the Supreme Court ruled that a A: A pre-proclamation controversy covers the following issues:
special election should be held whenever there is a failure of 225
1. Illegal composition' 224 or proceedings' of the board of
election. Accordingly, the following guidelines must be observed:
canvassers;
I. The constitutional and statutory proscriptions (e.g.,
2. That the canvassed election returns are incomplete,
Section 10, Article VII, 1987 Constitution; paragraph 2;
contain material defects, appear to be tampered with or
Section 4, R.A. No. 7166) are inapplicable to special
falsified, or contain discrepancies in the same returns or
elections which may be called under Section 6 of the
in other authentic copies thereof;
Omnibus Election Code; and
3. That the election returns were prepared under duress,
2. In fixing the date of the special election, the COMELEC
threats, coercion, or intimidation, or they are obviously
should see to it that: (a) it should be not later than 30
manufactured or not authentic; and
days after the cessation of the cause of the postponement
or suspension of the election or the failure to elect, and
(b) it should be reasonably close to the date of the 1223
BAR 1996.
election not held, suspended, or which resulted in failure 1224
Section 1, Rule 4 of the COMELEC Rules of Procedure on Disputes in an
to elect. Automated Election System provides that there is illegal composition of the board
of canvassers 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 board of canvassers by Republic Act No. 9369 shall be
included as among those whose lack of qualifications may be questioned.
1225
Id., Section 2, Rule 4 provides that there is illegal proceedings of the board of
canvassers when the canvassing is a sham or mere ceremony, the results of which
1221 mi tm ug
are pre-determined and manipulated as when any of the following circumstances are
COMELEC, G.R. Nos. 106270-73, 10 February 1994. present: (a) precipitate canvassing; (b) terrorism; (c) lack of sufficient notice to the
1222 G.R. Nos. 113107 & 113509, 20 July 1994. members of the board of canvassers; and (d) improper venue.
 540 COMPENDIOUS BAR REVIEWER ELECTION LAW 541
ON POLITICAL LAW

4. That when substitute or fraudulent returns in controverted any proclamation, if one has been made, as the evidence shall
polling places were canvassed, the results of which warrant.1231
materially affected the standing of the aggrieved candidate
or candidates.122° Q: When may a petition to suspend or annul the proclamation
be filed?
In Suhuri v. Commission on Elections,1227 the Supreme Court
held that the above enumeration is "restrictive and exclusive". A: At the outset, the Supreme Court in Perez v. Commission on
Elections1232 held that after an election is duly held and a
Q: When are pre-proclamation cases not allowed?'228 proclamation is thereafter made, a pre-proclamation controversy
A: Under Section 15 of Republic Act No. 7166, for purposes of should no longer be viable. Hence, as a general rule, the proper
the elections for President, Vice-President, Senator and Member remedy after the proclamation of the winning candidate for the
of the House of Representatives, as a rule, no pre-proclamation position contested would be to file a regular election protest or a
cases shall be allowed on matters relating to the preparation, petition for quo warranto. This admits however of exceptions,
transmission, receipt, custody and appreciation of the election to wit:
returns or the certificates of canvass, as the case may be. 1. where the board of canvassers was improperly constituted;
As an exception, this prohibition however does not preclude the 2. where quo warranto was not the proper remedy;
authority of the appropriate canvassing body motu proprio or
upon written complaint of an interested person to correct 3. where what was filed was not really a petition for quo
manifest errors in the certificate of canvass or election returns warranto or an election protest but a petition to annul the
before it. Questions affecting the composition or proceedings of proclamation;
the board of canvassers may likewise be initiated in the board or
4. where the filing of a quo warranto petition or an election
directly with the COMELEC in accordance with Section 19 of
protest was expressly made without prejudice to the pre-
Republic Act No. 7166.1229
proclamation controversy or was made ad cautelam; and
Q: Who has jurisdiction over pre-proclamation controversies? 233
5. where the proclamation was null and void.'
A: The COMELEC has exclusive jurisdiction in pre-proclamation
In cases where a pre-proclamation controversy may be properly
controversies arising from national, regional or local elections.'23° It
raised, the petition questioning the illegality, or the composition
may motu proprio or upon written petition, and after due notice
and/or proceedings of the board of canvassers shall be filed
and hearing, order the partial or total suspension of the
immediately when the board of canvassers begins to act as such,
proclamation of any candidate-elect or annul partially or totally
or at the time of the appointment of the member whose capacity

1226 B.P. Big. 881, Sec. 243.

1227 G.R. No. 181869, 02 October 2009.
1228 BAR 2008. 1231 B.P. Big. 881, Sec. 242.
1229 R.A. No. 7166, Sec. 15. 1232 G.R. No. L-55873, 25 February 1985.
1230 COMELEC Rules of Procedure, Rule 3, Sec. 2. 1233 Lorenzo v. COMELEC, G.R. No. 158371, 11 December 2003.
 542 COMPENDIOUS BAR REVIEWER ELECTION LAW 543
ON POLITICAL LAW

to sit as such is objected to, if it comes after the canvassing of the A: An election contest consists of either an election protest or a
board, or immediately when the proceedings become illegal. 1234 quo warranto which, although two distinct remedies, would have
If the illegality of the proceedings of the board of canvassers is one objective in view, i.e., to dislodge the winning candidate
discovered after the official proclamation of the supposed from office.' 237
results, a verified petition to annul the proclamation may be filed
Q: When is an election protest proper?
before the COMELEC within ten (10) days after the day of the
proclamation.1235 A: An election protest is proper when there is an election
contest raised by any candidate who was voted for in the same
Q: Distinguish between pre-proclamation controversy and office and who received the second or third highest number of
action for annulment of election or for declaration of failure votes or, in a multi-slot position, was among the next four
of election insofar as the duty of the COMELEC to examine candidates following the last ranked winner duly proclaimed.1238
election documents is concerned. It involves issues concerning electoral frauds, anomalies or
A: While, however, the COMELEC is restricted, in pre- irregularities (e.g., vote-buying, tampering, falsification, etc.) in
proclamation cases, to an examination of the election returns on the protested precincts. 1239
their face and is without jurisdiction to go beyond or behind
Q: Who may file an election protest?
them and investigate election irregularities, the COMELEC is
duty bound to investigate allegations of fraud, terrorism, A: A petition contesting the elections or returns of an elective
violence and other analogous causes in actions for annulment of regional, provincial, or city official shall be filed with the
election results or for declaration of failure of elections, as the COMELEC by any candidate who was voted for in the same
Omnibus Election Code denominates the same. Thus, the office and who received the second or third highest number of
COMELEC, in the case of actions for annulment of election results votes or, in a multi-slot position, was among the next four
or declaration of failure of elections, may conduct technical candidates following the last ranked winner duly proclaimed, as
examination of election documents and compare and analyze reflected in the official results of the election contained in the
voters' signatures and fingerprints in order to determine, whether Statement of Votes.'
or not the elections had indeed been free, honest and clean.1236
Q: When may an election protest or a petition for quo
4. Post-Proclamation warranto be filed?

a. Election Contest A: An election protest or petition for quo warranto shall be

filed within a non-extendible period of ten (10) days following
i. Election Protest the date of proclamation.1241 This is mandatory and jurisdictional.
Nonetheless, pursuant to Section 248 of the Omnibus Election
Q: Explain the nature and purpose of an election contest.

1237 Tecson v. COMELEC, G.R. Nos. 161434, 161634 & 161824, 03 March 2004.
1238 COMELEC Rules of Procedure, Rule 6, Sec. 2.
1234 COMELEC Rules of Procedure, Rule 4, Sec. 4. 1239 COMELEC Rules of Procedure, Rule 6, Sec. 7(g).
1235 COMELEC Rules of Procedure, Rule 6, Sec. 4. 1240 COMELEC Rules of Procedure, Rule 6, Sec. 2.
1236
Dagloc v. COMELEC, G.R. No. 138969, 17 December 1999. 1241 COMELEC Rules of Procedure, Rule 6, Sec. 3.
 544 COMPENDIOUS BAR REVIEWER ELECTION LAW 545
ON POLITICAL LAW

Code and Section 6, Rule 6 of the COMELEC Rules of Procedure ii. Quo warranto
on Disputes in an Automated Election System, the pendency of a
pre-proclamation controversy involving the validity of the Q: Explain the nature of an action for quo warranto.
proclamation as defined by law shall suspend the running of the
period to file an election protest or petition for quo warranto. A: A quo warranto proceeding is generally defined as being an
Likewise, the running of said reglementary period is tolled by a action against a person who usurps, intrudes into, or unlawfully
party's elevation to the Supreme Court of a COMELEC decision holds or exercises a public office. In such context, the election
or Resolution of a pre-proclamation case.1242 contest can only contemplate a post-election scenario:24s

Q: Differentiate election protest from pre-proclamation Q: What are the grounds for filing a petition for quo
controversy. warranto?1246

A: It is a well-entrenched rule in jurisprudence that, in a pre- A: Section 253 of the Omnibus Election Code and Section 1,
proclamation controversy, whose office is limited to incomplete, Rule 36 of the COMELEC Rules of Procedure provide that any
falsified or materially defective returns which appear as such on voter may file a petition for quo warranto on the ground of a
their face, the board of canvassers and the COMELEC are not to candidate's ineligibility or disloyalty to the Republic of the
look beyond or behind election returns which are on their face Philippines.
regular and authentic returns, wanting of any physical signs of
tampering, alteration, or other similar vice. If there had been Q: Distinguish election protest from quo warranto.1247
sham voting or minimal voting that was made to appear as normal A: In Lokin Jr. v. COMELEC,1248 the Supreme Court held that
through the falsification of the election returns by protestee's an election protest proposes to oust the winning candidate from
followers, such grounds are properly cognizable in an election office. It is strictly a contest between the defeated and the
protest and not in a pre-proclamation controversy. 1243 winning candidates, based on the grounds of electoral frauds and
irregularities, to determine who between them has actually
Q: Discuss the implications of filing an election protest vis-à-
obtained the majority of the legal votes cast and is entitled to
vis a pre-proclamation controversy.
hold the office. It can only be filed by a candidate who has duly
A: The filing of an election protest as a rule (1) precludes the filed a certificate of candidacy and has been voted for in the
subsequent filing of a pre-proclamation controversy or (2) preceding elections.
amounts to the abandonment of one earlier filed, thus depriving
On the other hand, a special civil action for quo warranto refers
COMELEC the authority to inquire into and pass upon the title
to questions of disloyalty to the State, or of ineligibility of the
of the protestee or the validity of his/her proclamation.'
winning candidate, to unseat the ineligible person from the
office. It is not necessarily to install another in his/her place. Any
voter may initiate the action, which is, strictly speaking, not a

1242
Roquero v. COMELEC, G.R. No. 128165, 15 April 1998. 1245 Tecson v. COMELEC, G.R. Nos. 161434, 161634 & 161824, 03 March 2004.
1243 Salih v. COMELEC, G.R. No. 122872, 10 September 1997; Chu v. COMELEC, 1246BAR 2009.
G.R. No. 135423, 29 November 1999. 1247 BAR 2001, 2006.
1244 Sinsuat v. COMELEC, G.R. No. 169106, 23 June 2006.
1248 G.R. No. 179431-32, 22 June 2010.
 546 COMPENDIOUS BAR REVIEWER ELECTION LAW 547
ON POLITICAL LAW

contest where the parties strive for supremacy because the losing (3) House of Representatives Electoral Tribunal (1987
candidate will not be seated even if the winning candidate may CONST., Art. VI, Sec. 17)
be unseated.'249
Q: What is the authority and composition of the House of
iii. Jurisdiction Representatives Electoral Tribunal (HRET)?
(1) Presidential Electoral Tribunal (1987 CONST., Art. VII, A: The House of Representatives shall have an Electoral
Sec. 4) Tribunal which shall be the sole judge of all contests relating to
the election, returns, and qualifications of the members of the
Q: What is the composition of the Presidential Electoral House of Representatives. The House of Representatives Electoral
Tribunal? Tribunal shall be composed of nine members, three of whom
shall be Justices of the Supreme Court to be designated by the
A: The Supreme Court, sitting en bane, shall be the sole judge
Chief Justice, and the remaining six shall be members of the
of all contests relating to the election, returns, and qualifications
House of Representatives, who shall be chosen on the basis of
of the President or Vice- President, and may promulgate its rules
proportional representation from the political parties and the
for the purpose:25'
parties or organizations registered under the party-list system
(2) Senate Electoral Tribunal (1987 CONST., Art. VI, Sec. 17) represented therein. The senior Justice in the Electoral Tribunal
shall be its Chairman.'252
Q: What is the authority and composition of the Senate
Electoral Tribunal (SET)? Q: Discuss the quo warranto proceedings if initiated before
the HRET.
A: The Senate shall have an Electoral Tribunal which shall be
the sole judge of all contests relating to the election, returns, and A: A petition for quo warranto in the HRET is directed against
qualifications of the members of the Senate. The Senate Electoral one who has been duly elected and proclaimed for having
Tribunal shall be composed of nine members, three of whom obtained the highest number of votes but whose eligibility is in
253
shall be Justices of the Supreme Court to be designated by the question at the time of such proclamation.'
Chief Justice, and the remaining six shall be members of the
Q: When does the jurisdiction of the HRET begin?
Senate who shall be chosen on the basis of proportional representation
from the political parties and the parties or organizations registered. A: The jurisdiction of the HRET begins and that of the COMELEC
The senior Justice in the Electoral Tribunal shall be its Chain Ilail.1251 ends once (1) the party or organization of the party-list nominee
has been proclaimed and (2) the nominee has taken his/her oath
and (3) assumed office as member of the House of Representatives.
The Constitution provides that the HRET shall be the sole judge
of all contests relating to, among others, the qualifications of

1249
Id.
12'0 CONST., Art. VII, Sec. 4. 1252 Id.
12'1 CONST., Art. VI, Sec. 17. 1253 Codilla, Sr. v. De Venecia, G.R. No. 150605, 10 December 2002.
 548 COMPENDIOUS BAR REVIEWER ELECTION LAW 549
ON POLITICAL LAW

members of the House of Representatives.' Insofar as quo barangay officials decided by trial courts of limited jurisdiction.
warranto is concerned, the term "qualifications" refers to matters Accordingly, Section 249 of the Omnibus Election Code is
that could be raised in a quo warranto proceeding against the amended, insofar as it arrogates upon the COMELEC the same
proclaimed winner, such as his/her disloyalty or ineligibility or authority over members of the Batasang Pambansa, and in view of
the inadequacy of his/her certificate of candidacy.' the clear mandate of Section 17, Article VI of the Constitution.'"
Q: Who assumes jurisdiction if at the time a candidate won In Pangilinan v. COMELEC, the Supreme Court ruled that the
a seat in the House of Representatives, there is a pending establishment of the Electoral Tribunals in both the Senate and
election contest against him before the COMELEC? the House divested the COMELEC of its jurisdiction under the
1973 Constitution over election cases, including pre-proclamation
A: After proclamation, taking of oath and assumption of office
controversies, pertaining to the election of the members of
by a candidate for the House of Representatives, jurisdiction Congress.'258
the
over the matter of his/her qualifications, as well as questions
regarding the conduct of election and contested returns will be Q: Where do you file an election contest involving members
transferred to the HRET. Section 16 of COMELEC Resolution of the House of Representatives, or any regional, provincial
No. 8678 which contemplate disqualification cases against or city officers?
candidates over which the COMELEC retains jurisdiction even
after those candidates have won the elections, duly proclaimed, A: A sworn petition contesting the election of any member of
and assumed office cannot apply to a member of the House of the House of Representatives or any regional, provincial or city
Representatives since jurisdiction is vested with the HRET.' officer shall be filed with the COMELEC by any candidate who
has duly filed a certificate of candidacy and has been voted for
(4) COMELEC (1987 CONST., Art. IX-C, Sec. 2(2); B.P. the same office, within ten (10) days after the proclamation of
259
Big. 881, Secs. 250 and 253) the results of the election.'
Q: Discuss the scope of COMELEC's authority over Q: Where do you file a petition for quo warranto involving
contests relating to the elections, returns, and qualifications members of the House of Representatives, or any regional,
of elective officials. provincial or city officers?
A: Article IX-C, Section 2 of the 1987 Constitution provides A: Any voter contesting the election of any member of the
that COMELEC shall exercise exclusive original jurisdiction over House of Representatives, or any regional, provincial, or city
all contests relating to the elections, returns, and qualifications of officer on the ground of ineligibility or of disloyalty to the
all elective regional, provincial, and city officials, and appellate Republic of the Philippines shall file a sworn petition for quo
jurisdiction over all contests involving elective municipal officials
decided by trial courts of general jurisdiction, or involving elective

1257 "The Senate and the House of Representatives shall each have an Electoral
1254 Abayon v. HRET, G.R. Nos. 189466 & 189506, 11 February 2010; Vinzons-Chato v. Tribunal which shall be the sole judge of all contests relating to the election, returns,
COMELEC, G.R. No. 172131, 02 April 2007. and qualifications of their respective Members. x x x"
1255 Barbers v. COMELEC, G.R. No. 165691, 22 June 2005.
1258 G.R. No. 105278, 18 November 1993.
1258 Gonzalez v. COMELEC, G.R. No. 192856, 08 March 2011.
1259 B.P. Blg. 881, Sec. 250.
 550 COMPENDIOUS BAR REVIEWER ELECTION LAW 551
ON POLITICAL LAW

warranto with the Commission within ten (10) days after the (6) MTC B.P. Blg. 881, Secs. 252-253)
proclamation of the results of the election.126°
Q: Where do you file a petition for quo warranto involving
(5) RTC (RA. No. 7166, Sec. 22; B.P. Big. 881, Secs. 251 and 253) barangay officers?
Q: Where do you file an election contest involving municipal A: Any voter contesting the election of any barangay officer on
officers? the ground of ineligibility or of disloyalty to the Republic of the
Philippines shall file a sworn petition for quo warranto with the
A: A sworn petition contesting the election of a municipal municipal or metropolitan trial court within ten (10) days after
officer shall be filed with the proper regional trial court by any 126a
the proclamation of the results of the election.
candidate who has duly filed a certificate of candidacy and has
been voted for the same office, within ten days after proclamation Q: Where do you file an election contest involving barangay
of the results of the election.1261 officers?
Q: Where do you appeal decisions rendered by the regional A: A sworn petition contesting the election of a barangay
trial court regarding election contests involving municipal officers? officer shall be filed with the proper municipal or metropolitan
trial court by any candidate who has duly filed a certificate of
A: All election contests involving municipal officers filed with candidacy and has been voted for the same office, within ten (10)
the regional trial court shall be decided expeditiously. The days after the proclamation of the results of the election. The
decision may be appealed to COMELEC within five (5) days trial court shall decide the election protest within 15 days after
from promulgation or receipt of a copy thereof by the aggrieved the filing thereof. The decision of the municipal or metropolitan
party. The COMELEC shall decide the appeal within 60 days trial court may be appealed within ten days from receipt of a
after it is submitted for decision, but not later than six (6) months copy thereof by the aggrieved party to the regional trial court
after the filing of the appeal, which decision shall be final, which shall decide the case within 30 days from its submission,
unappealable and executory. ] 262 and whose decisions shall be final.'
Q: Where do you file a petition for quo warranto involving Q: Outline the proper forum in bringing election contest
municipal officers? cases.1266
A: Any voter contesting the election of any municipal officer on A:
the ground of ineligibility or of disloyalty to the Republic of the
Philippines shall file a sworn petition for quo warranto with the
regional trial court within ten (10) days after the proclamation of
the results of the election.1263

1260
B,P. Blg. 881, Sec. 253.
1261 B.P. Blg. 881, Sec. 251. 1264 B.P. Big. 881, Sec. 253.
1262
R.A. No. 7166, Sec. 22. '265 B.P. Blg. 881, Sec. 252.
'263 B.P. Blg. 881, Sec. 253. 1266 BAR 2001.
 552 COMPENDIOUS BAR REVIEWER ELECTION LAW 553
ON POLITICAL LAW

Appeal/Certiorari Certiorari COMELEC

Election (from regular (from Elective Division'275
Protest/Quo courts' or COMELEC City,
Warranto tribunals' Regional, Motion for Supreme
en banc
decisions) and Reconsideration Court'
decisions)
Provincial to be filed with
Metropolitan Officials COMELEC en
Trial Courts bane
(MeTC), COMELEC
Municipal Trial Division' Members '2" Supreme
Courts in Cities of the HRET Court1278
Elective
(MTCC), Motion for Supreme House
Barangay
Municipal Trial Reconsideration Court'
Officials Members Supreme
Courts (MTC), to be filed with
of the SET12" coueso
Municipal COMELEC en
Circuit Trial banc1" 9 Senate
Courts President Supreme Court
(MCTC)'267 and Vice- (sitting as
President PET)128I
COMELEC
Division1272
Elective Recall
Regional Trial Motion for Supreme
Municipal
Court (RTC)1271 Reconsideration c ourt 1274
Q: Discuss the concept of recall.
Officials
to be filed with
COMELEC en A: By recall, "an elective official may be removed at any time
bane'273 during his term by the vote of the people at an election called for
such purpose or at a general election. The underlying purpose
behind the recall of public officers is to provide an effective
speedy remedy for the removal of an official who is not giving
1257 B.P. BIg. 881, Secs. 252-253.
1268 Eriguel v. COMELEC, G.R. No. 190526, 26 February 2010.
1268 Jaramilla v. COMELEC, G.R. No. 155717, 23 Procedure, Rule 6, Sec. 1; Eriguel
October 2003. 1275 B.P. Big. 881, Sec. 250; COMELEC Rules of
1228 COMELEC Rules of Procedure, Rule 37, Sec. 1;
Esteves v. Sarmiento, G.R. No. v. COMELEC, G.R. No. 190526, 26 February 2010.
182374, I I November 2008. 1276 COMELEC Rules of Procedure, Rule 37, Sec. 1; Esteves
v. Sarmiento, G.R. No.
1221 B.P. BIg. 881, Secs. 251, 253.
182374, 11 November 2008.
1222 COMELEC Rules of Procedure, Rule 35, Sec. 21
and Rule 36, Sec. 14; Eriguel 12" CONST., Art. VI, Sec. 17.
v. COMELEC, G.R. No. 190526, 26 February 2010.
1278 Abubakar v. HRET, G.R. No. 173310, 07 March 2007.
1222 foramina v. CO.VIELEC, G.R. No. 155717, 23 134142, 24 August 1999.
October 2003. 1279 CONST., Art. VI, Sec. 17; Rasul v. COMELEC, G.R. No.
1224 COMELEC Rules of Procedure, Rule 37, Sec. 1;
Esteves v. Sarmiento, G.R. No. 1280 Tolentino v. SET, G.R. No. 248005, 11 May 2021.
182374, 11 November 2008. 1281 Macalintal v. PET, G.R. No. 191618, 23 November 2010.
 554 COMPENDIOUS BAR REVIEWER ELECTION LAW 555
ON POLITICAL LAW

satisfactory service to the public and whom the electors do not officials, and forty-five (45) days in the case of
want to remain in office, regardless of whether he is discharging provincial officials.' 285
his full duty to the best of his ability and as his conscience
dictates." It is political in nature, and not an exercise of a judicial 3. For purposes of the recall election, the officials sought to
function.`282 be recalled shall automatically be considered as duly
registered candidate or candidates to the pertinent
Q: How is recall initiated? positions and, like other candidates, shall be entitled to
be voted upon.`286 The elective local official sought to be
A: The recall of any elective provincial, city, municipal or recalled shall not be allowed to resign while the recall
barangay official shall be commenced only by a petition of a process is in progress.'"
registered voter in the local government unit concerned and
supported by the registered voters thereof during the election in Q: What are the limitations on recall?
which the local official sought to be recalled was elected.'283
Note that Republic Act No. 9244 eliminated the preparatory A: The following are the limitations on recall:
recall assembly as a mode of instituting recall of elective local 1. Any elective local official may be the subject of a recall
government officials. election only once during his term of office for loss of
confidence.
Q: Briefly outline the proceedings on recall election.
2. No recall shall take place within one (1) year from the
A:
date of the official's assumption to office or one (1) year
288
1. Upon receipt of a petition to recall, the COMELEC shall immediately preceding a regular local election.'
certify as to the sufficiency of the required number of
3. The assumption by legal succession of an incumbent
signatures, as well as verify and authenticate the signatures
candidate, as when from being the vice-mayor he assumed
of the petitioners and registered voters who expressed
the office of the mayor, is a supervening event which
support. Failure to obtain the required number of signatures 289
will render the recall proceeding moot and academic.'
automatically nullifies the petition.'
2. Upon the filing of a valid petition for recall, the G. Prosecution of Election Offenses B.P. Ble. 881 as
COMELEC shall set the date of the election or recall, amended by R.A. No. 9369, Sec. 2651i2"
which shall not be later than thirty (30) days upon the
Q: Discuss COMELEC's authority to prosecute election offenses.
completion of the procedure outlined in Section 70 of
the LGC, in the case of the barangay, city or municipal

1285 LGC, Sec. 71.

1286 Id.
1282 Hector S. De Leon and Hector M. De Leon, Jr., The Law on Public Officers and 1287 LGC, Sec. 73.
Election Law, 783 (2019 ed.). 1288 LGC, Sec. 74.
1283 LGC, Sec. 70. 1289 ilfiado v. COMELEC, G.R. No. 141787, 18 September 2000.
1284 Id
129° *Excluding Penal Provisions.
 556 COMPENDIOUS BAR REVIEWER ELECTION LAW 557
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A: Under Section 265 of the Omnibus Election Code, the Q: Explain the scope of COMELEC's authority to prosecute.
COMELEC shall have the power, concurrent with the other
prosecuting arms of the government, to conduct preliminary A: The Supreme Court in Romualdez v. COMELEC held that the
investigation of all election offenses punishable under the Omnibus power to prosecute necessarily involves the power to determine
Election Code and prosecute the same. The jurisdiction to try who shall be prosecuted, and the corollary right to decide whom
and decide criminal action or proceedings for the violation of the not to prosecute. The power to prosecute also includes the right
Omnibus Election Code, however, except those relating to the to determine under which laws prosecution will be pursued.' In
offense of failure to register or failure to vote which shall be other words, when investigating and prosecuting election
under the jurisdiction of the metropolitan or municipal trial offenses, COMELEC should be accorded full discretion whether
1295
courts, is still lodged with the regional trial court.1291 to initiate a criminal case.

In Blanco v. COMELEC, the Supreme Court clarified that if the Q: Which between COMELEC in division and COMELEC
election cases are criminal and not administrative in nature, en banc may properly take cognizance of the preliminary
the power of the COMELEC is confined to the conduct of investigation of an election offense?
preliminary investigation on the alleged election offenses for the A: It has been a long-standing practice of the COMELEC to
purpose of prosecuting the alleged offenders before the regular allow its en banc to properly take cognizance of administrative
courts of j ustice .12" election cases, such as a preliminary investigation. Considering
Q: How does COMELEC's authority to prosecute election that at this stage the COMELEC does not make any pronouncement
offenses fare with the general authority of the prosecutors to as to the guilt or innocence of the party involved, a preliminary
prosecute criminal offenses? investigation cannot be considered a judicial or quasi-judicial proceeding
required to be heard by the Division in the first instance.'
A: It must be stressed that the COMELEC has the exclusive
power to conduct preliminary investigation of all election At this juncture, it is important to discuss that under Section 2,
offenses punishable under the election laws and to prosecute the Article IX-C of the 1987 Constitution, the COMELEC exercises
same, except as may otherwise be provided by law. The Chief both administrative and quasi-judicial powers. The 1987 Constitution
State Prosecutor, all Provincial and City Prosecutors, or their does not prescribe how the COMELEC should exercise its
respective assistants are, however, given continuing authority, as administrative powers, whether en banc or in division. On the
deputies of the COMELEC, to conduct preliminary investigation other hand, the COMELEC's exercise of its quasi-judicial
of complaints involving election offenses and to prosecute the powers is subject to Section 3 of Article IX-C which expressly
same. This authority may be revoked or withdrawn by the requires that all election cases, including pre-proclamation
COMELEC anytime.' controversies, shall be decided by the COMELEC in division,

1291 B.P. Blg. 881, See, 268. 1294 G.R. No. 167011, 30 April 2008.
'292 G.R. No. 180164, 17 June 2008. 1295 Roquero v. COMELEC, G.R. No. 128165, 15 April 1998.
'293 COMELEC v. Tagle, G.R. No. 148948 & 148951-60, 17 February 2003. 1296 Boylan v. COMELEC, G.R. 153945, 04 February 2003.
 558 COMPENDIOUS BAR REVIEWER
ON POLITICAL LAW

and the motion for reconsideration shall be decided by the

COMELEC en banc. 129' XI. Local Governments
Q: Briefly outline the procedure if the preliminary investigation (1987 Const., Art. X; R.A. No. 7160)
is conducted by COMELEC itself.
A. Principles of Local Autonomy
A: If the preliminary investigation of a complaint for election
offense is conducted by the COMELEC itself, its investigating Q: What is the principle of local autonomy?
officer prepares a report upon which COMELEC's Law Department
makes its recommendation to the COMELEC en banc on whether A: The principle of local autonomy under the 1987 Constitution
there is probable cause to prosecute. It is thus the COMELEC en simply means "decentralization." It does not make local governments
banc which determines the existence of probable cause. sovereign within the state or an "imperium in imperio.n1300 But
while regulations may validly be imposed on the exercise of
The prosecutors are subject to the control and supervision of the local autonomy, such regulations are ultimately geared toward
COMELEC. The resolution by the prosecutor is appealable to enhancing self-governance. Consequently, the devolution of
the COMELEC while the resolution of the COMELEC en banc administrative powers and functions inherent in local autonomy
may be subject of a motion for reconsideration.1298 should not be rendered inutile by the need to seek prior approval
from central government agencies. Rather, an autonomous local
Q: When do election offenses prescribe? government should be able to promptly address matters in the
A: Election offenses shall prescribe after five (5) years from the exigencies of public service without undue restriction.1301 Local
date of their commission. If the discovery of the offense be made autonomy means a more responsive and accountable local government
302
in an election contest proceeding, the period of prescription shall structure instituted through a system of decentralization.`
commence on the date on which the judgment in such Autonomy, in the constitutional sense, is subject to the guiding
proceedings becomes final and executory.'' star, though not control, of the legislature, albeit the legislative
responsibility under the Constitution — and as the "supervision
clause" itself suggests - is to wean local government units from
overdependence on the central government. It is noteworthy that
under the Charter, "local autonomy" is not instantly self-executing,
but subject to, among other things, the passage of a local
government code, a local tax law, income distribution legislation,

1300 Republic v. Provincial Government of Palawan, G.R. Nos. 170867 & 185941,
04 December 2018.
'3°' Leonen, J. Separate Concurring Opinion, Province of Camarines Sur v. Commission
on Audit, G.R. No. 227926, 10 March 2020.
302 Villafuerte, Jr. v. Robredo, G.R. No. 195390, 10 December 2014.
'297 Id.
1298 Faelnar v. People, G.R. No. 140850-51, 04 May 2000.
1299 B.P. Blg. 881, Sec. 267. 559
 560 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 561
ON POLITICAL LAW

and a national representation law, and measures designed to from the central government. This amounts to self-immolation
realize autonomy at the local level. It is also noteworthy that in because the autonomous LGUs thereby become accountable not
spite of autonomy, the Constitution places the local governments to the central authorities but to their constituencies.
under the general supervision of the Executive. It is noteworthy
finally, that the Charter allows Congress to include in the local On the other hand, the decentralization of administration occurs
government code provisions for removal of local officials, which when the central government delegates administrative powers to
suggests that Congress may exercise removal powers, and as the the LGUs as the means of broadening the base of governmental
existing Local Government Code (LGC) has done, delegate its powers and of making the LGUs more responsive and accountable in
exercise to the President.'' the process, and thereby ensure their fullest development as self-
reliant communities and more effective partners in the pursuit of
Q: What is devolution? the goals of national development and social progress. This form
of decentralization further relieves the central government of the
A: Devolution refers to the act by which the National Government
burden of managing local affairs so that it can concentrate on
confers power and authority upon the various local government
national concerns. Administrative decentralization is also referred to
units (LGUs) to perform specific functions and responsibilities.1304 deconcentration.1305
as
The following are the devolved powers to the LGUs:
1. Public works; Q: What is the difference between the decentralization
granted to LGUs from that granted to autonomous regions?
2. Social welfare;
A: A group of LGUs (i.e., provinces, cities, municipalities, and
3. Construction of school building and facilities; barangays) enjoy the decentralization of administration. The provinces,
cities, municipalities, and barangays are given decentralized
4. Health; administration to make governance at the local levels more directly
5. Agriculture; and responsive and effective. In turn, the economic, political, and
social developments of the smaller political units are expected to
6. Tourism functions. propel social and economic growth and development.
Q: What is decentralization? In contrast, decentralization of power is given to the regional
units. The regional autonomy of the Autonomous Region in
A: In its broad or general sense, decentralization has two forms Muslim Mindanao (ARMM) and the Cordillera Administrative
in the Philippine setting, namely: the decentralization of power Region (CAR) aims to permit determinate groups with common
and the decentralization of administration. The decentralization traditions and shared social-cultural characteristics to freely
of power involves the abdication of political power in favor of develop their ways of life and heritage, to exercise their rights,
the autonomous LGUs as to grant them the freedom to chart their and to be in charge of their own affairs through the establishment
own destinies and to shape their futures with minimum intervention of a special governance regime for certain member communities
who choose their own authorities from within themselves, and

33°3
1304
Ganzon v. Court of Appeals, G.R. No, 93252, 93746 & 95245, 05 August 1991.
Tano v. Socrates, G.R. No. 110249, 21 August 1997. 1305 Mandanas v. Ochoa, G.R. No. 199802 & 208488, 03 July 2018.
 562 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 563
ON POLITICAL LAW

exercise the jurisdictional authority legally accorded to them to units and not a double majority of the votes in all constituent
decide their internal community affairs.'3o6 units put together, as well as in the individual constituent units."'

Q: What does an autonomous region consist of? Q: What are the legislative powers granted to autonomous
regions which it can exercise over its territorial jurisdiction?
A: An autonomous region consists of provinces, cities, municipalities,
and geographical areas sharing common and distinctive historical A: Subject to the provisions of the Constitution and national
and cultural heritage, economic and social structures, and other laws, the organic act of autonomous regions shall provide for
relevant characteristics within the framework of the Constitution legislative powers over:
and the national sovereignty as well as territorial integrity of the
1. Administrative organization;
Republic of the Philippines.
2. Creation of sources of revenues;
Q: How is an autonomous region created?
3. Ancestral domain and natural resources;
A: The Congress shall enact an organic act for each autonomous
region with the assistance and participation of the regional 4. Personal, family, and property relations;
consultative commission composed of representatives appointed
by the President from a list of nominees from multi-sectoral 5. Regional urban and rural planning development;
bodies. The organic act shall define the basic structure of 6. Economic, social, and tourism development;
government for the region consisting of the executive department
and legislative assembly, both of which shall be elective and 7. Educational policies;
representative of the constituent political units. The organic acts
8. Preservation and development of the cultural heritage; and
shall likewise provide for special courts with personal, family,
and property law jurisdiction consistent with the provisions of 9. Such other matters as may be authorized by law for the
the Constitution and national laws. promotion of the general welfare of the people of the region.
The creation of the autonomous region shall be effective when Q: What are the limitations to the autonomy given to
approved by majority of the votes cast by the constituent units in autonomous regions?
a plebiscite called for the purpose, provided that only provinces,
cities, and geographic areas voting favorably in such plebiscite A: Autonomous regions are empowered to undertake all internal
shall be included in the autonomous region. administrative matters for the respective regions except those
matters within the jurisdiction and competence of the national
It is clear that what is required by the Constitution is a simple government, which include, but are not limited to the following:
majority of votes approving the organic act in individual constituent
1. National defense and security;
2. Foreign relations;

n°6 Id. 13°7 Abbas v. Commission on Elections, G.R. No. 89651 & 89965, 10 November 1989.
564 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 565
ON POLITICAL LAW

3. Foreign trade; Q: What are the limitations to the principle of local autonomy?
4. Currency, monetary affairs, foreign exchange, banking A: The President of the Philippines exercises general supervision
and quasi-banking, and external borrowing, over local governments. The President has authority to see to it
that rules are followed, and laws are faithfully executed. However,
5. Disposition, exploration, development, exploitation or
the President may only point out that rules have not been followed
utilization of all natural resources;
but the President cannot lay down the rules, neither does he have
6. Air and sea transport; the discretion to modify or replace the rules."'

7. Postal matters and telecommunications; Also, Congress retains control of the LGUs although in significantly
reduced degree now than under the previous Constitutions. The
8. Customs and quarantine; power to create still includes the power to destroy. The power to
9. Immigration and deportation; grant still includes the power to withhold or recall. The national
legislature is still the principal of the LGUs, which cannot defy
10. Citizenship and naturalization; its will or modify or violate it.
11. National economic, social and educational planning; and Q: What is local fiscal autonomy?
12. General auditing. 1308 A: Local fiscal autonomy means the power of LGUs to create
their own sources of revenue in addition to their equitable share
Q: The Province of SK was created by the Regional Assembly in the national taxes released by the national government, as well
by virtue of Muslim Mindanao Autonomy Act. Mr. S, a as the power to allocate their resources in accordance with their
candidate, contends that SK, as a newly created province, is own priorities.131
'
entitled to one representative in Congress. Is Mr. S correct?
Q: Does the Commission on Audit have jurisdiction over LGU?
A: The Supreme Court in Sema v. COMELEC13" held in the
negative. The power to create a province or city inherently involves A: Yes. LGUs though granted local fiscal autonomy, are still
the power to create a legislative district and only Congress has within the audit jurisdiction of the Commission on Audit which
such power. It is axiomatic that organic acts of autonomous extends to the government, or any of its subdivisions, agencies,
regions cannot prevail over the Constitution. Section 20, Article or instrumentalities, including government-owned or controlled
X of the Constitution expressly provides that the legislative corporations with original charters. Its jurisdiction likewise
powers of regional assemblies are limited "within its territorial covers, albeit on a post-audit basis, the constitutional bodies,
jurisdiction and subject to the provisions of the Constitution and commissions and offices that have been granted fiscal autonomy,
national laws." autonomous state colleges and universities, other government-

131° Province of Negros Occidental v. Commissioners, Commission on Audit, G.R.

No. 182574, 28 September 2010.
1308 Limbona v. Mangelin, G.R. No. 80391, 28 February 1989. Is" Republic v. Provincial Government of Palawan, G.R. Nos. 170867 & 185941,
13°9 G.R. Nos. 177597 & 178628, 16 July 2008. 04 December 2018.

Lr
 566 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 567
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owned or controlled corporations and their subsidiaries, and such functions, then the corporation is considered public.1316 The mere
non-governmental entities receiving subsidy or equity from or fact that the Government happens to be a majority stockholder
317
through the government. The power of the Commission on Audit does not make it a public corporation.'
to examine and audit government agencies cannot be taken away
from it as Section 3, Article IX-D of the Constitution mandates Q: What is a Government-Owned or -Controlled
that "no law shall be passed exempting any entity of the Government Corporation (GOCC)?
or its subsidiary in any guise whatever, or any investment of public
funds, from the jurisdiction of the Commission on Audit.13'Z A: Section 16, Article XII of the Constitution provides that a GOCC
is any agency organized as a stock or a non-stock corporation,
B. Local Government Units vested with functions relating to public needs, whether governmental
or proprietary in nature, and owned by the Government directly
Q: What are the classes of corporations according to their or through its instrumentalities either wholly or where applicable
purpose? as in the case of stock corporations, to the extent of at least 51%
of its capital stock.
A: The following are the classes of corporations according to
their purpose: Q: What are the differences between public corporations
1. and GOCCs?
Public Corporations — it is created by the State as its
own agency or instrumentality to help it in carrying out A: The differences between public corporations and GOCCs are
its governmental functions.1313 These are not subject to as follows:
the tests of ownership or control and economic viability
but to different criteria relating to their public purposes/ 1. As to purpose — Public corporations are created for
interests or constitutional policies and objectives and political or administrative purposes connected with the
their administrative relationship to the government. ' 14 public good in the administration of the civil government
while GOCCs are created for limited purposes such as to
2. Private Corporations — it is established for private purpose, take charge of some public or state work, other than
benefit, aim or end."' community work, 1318
Q: What is the test to identify whether a corporation is 2. As to manner of creation — Public corporations may
public corporation or a private corporation? only be created through statute1319 while GOCCs may be
created through a special charter enacted by Congress or
A: If the corporation is created by the State as its own agency or through the Revised Corporation Code or a special law
instrumentality to help it in carrying out its governmental

1316 Philippine Society for the Prevention of Cruelty to Animals v.

Commission on
Audit, G.R. No. 169752, 25 September 2007.
1312 Veloso v. Commission on Audit, G.R. No. 193677, 06 September 2011. 13" National Coal Co. v. Commission of Internal Revenue, G.R. No. L-22619, 02
1313 Fernando v. Commission on Audit, G.R. No. 237938, 04 December 2018. December 1924.
Dig NAWAS4 v. NA WASAConsolidated Unions, G.R. No. L-18939, 31
13k Boy Scout ofthe Philippines v. Commission on Audit,
G.R. No. 177131, 07 June 2011. August 1964.
'315
Act No. 1459. Sec. 3. 1319 La Bugal-B'Laan Tribal Association v. Ramos, G.R. No. 127883, 01
December 2004.
 568 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 569
ON POLITICAL LAW

enabling charter applicable to a class of GOCCs (e.g., actually functions as an extension of the national government
P.D. No. 98). 1320 and therefore, it is an instrumentality of the latter.
1322

3. As to powers — Public corporations may exercise state 323

Q: Define a de facto municipal corporation.'
powers such as police power, taxation, and eminent domain.
GOCCs may exercise the powers provided under their A: A de facto municipal corporation is one where its legal
respective charters or the powers provided under the existence has been recognized and acquiesced publicly and
Revised Corporation Code. officially and was organized under a color of authority which
may be a valid law enacted by the legislature or an an
4. As to personality — Public corporations are political unconstitutional law, valid on its face, which has either (a) been
subdivisions of the Republic of the Philippines while upheld for a time by the courts or (b) not yet been declared void;
GOCCs are separate and distinct from the government. provided that a warrant for its creation can be found in some
other valid law or in the recognition of its potential existence by
Q: What are quasi-corporations?
the general laws or constitution of the state.'"
A: Quasi-corporations are created by the State for a narrow or 1325
limited purpose. They are called such because they are not true Q: Define municipal corporation by estoppel.
corporations as they do not possess full corporate powers. A: A municipal corporation by estoppel, similar to a corporation
by estoppel, applies when a corporation which is defectively
Q: What are quasi-public corporations?
formed as not to be a de facto corporation enters into contracts or
A: Quasi-public corporations are private corporations that render dealings with third persons. In which case, the person who has
public service, supply public wants or pursue other eleemosynary contracted or otherwise dealt with the non-existent corporation is
objectives. While purposely organized for the gain or benefit of estopped to deny the latter's legal existence in any action leading
326
its members, they are required by law to discharge functions for out of or involving such contract or dealing.'
the public benefit. Examples of these corporations are utility, railroad,
warehouse, telegraph, telephone, water supply corporations and Q: What is meant by the dual nature of municipal corporations?
transportation companies. It must be stressed that a quasi-public A: The Supreme Court has recognized the dual character of a
corporation is a species of private corporations, but the qualifying municipal corporation, one as governmental, being a branch of
factor is the type of service the former renders to the public: if it the general administration of the State, and the other as quasi-
performs a public service, then it becomes a quasi-public corporation!'

Q: What are municipal corporations?

A: Municipal corporations are government entities recognized,
supported and utilized by the National Government as a part of 1322 Surigao Electric Co., Inc. v. Municipality of Surigao, G.R. No. L-22766, 30
its government machinery and functions; a municipal government August 1968.
1323 BAR 2010.
1324 Municipality of Malabang v. Benito, G.R. No. L-28113, 28 March 1969.
1320
1325 BAR 2010.
Feliciano v. Commission on Audit, G.R. No. 147402, 14 January 2004. 1326 Missionary Sisters of Our Lady of Fatima v. Alzona, G.R. No. 224307, 06
1321
Fernando v. Commission on Audit, G.R. No. 237938, 04 December 2018. August 2018.
 570 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 571
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private and corporate.132' Governmental powers are those conversion in order to harmonize Section 453 with Section 10,
exercised by the corporation in administering the powers of the Article X of the Constitution.
state and promoting the public welfare and they include the
legislative, judicial, public, and political. Municipal powers on Q: A law converted the component city of Malumanay,
the other hand are exercised for the special benefit and advantage Laguna into a highly urbanized city. The LGC provides that
of the community and include those which are ministerial, the conversion "shall take effect only after it is approved by
private and corporate.1" 8 the majority of votes cast in a plebiscite to be held in the
political units directly affected." Before the COMELEC,
Q: How are LGUs created, divided, merged, or abolished? Mayor Xenon of Malumanay City insists that only the
registered voters of the city should vote in the plebiscite
A: Under the LGC, an LGU may be created, divided, merged, because the city is the only political unit directly affected by
abolished, or its boundaries substantially altered either by a law the conversion. Meanwhile, Governor Yuri asserts that all
enacted by Congress in the case of a province, city, municipality, the registered voters of the entire province of Laguna should
or any other political subdivision, or by an ordinance passed by participate in the plebiscite, because when the LGC speaks of
the Sangguniang Panlalawigan or Sangguniang Panlungsod the "qualified voters therein," it means all the voters of all
concerned in the case of a barangay located within its territorial the political units affected by such conversion, and that
jurisdiction, subject to such limitations and requirements prescribed includes all the voters of the entire province. He argues that
in the Code. the income, population, and area of Laguna will be reduced.
The LGC also provides that the creation, division, merger, Who between Mayor Xenon and Governor Yuri is correct?
abolition, or substantial alteration of boundaries of LGUs shall Explain your answer.1""
be approved by a majority of the votes cast in a plebiscite called A: Governor Yuri is correct in arguing that all the registered
for the purpose in the political unit or units directly affected. Said voters of the Province of Laguna should be included in the plebiscite.
plebiscite shall be conducted by the Commission on Elections The Supreme Court in the case of Umali v. COMELEC'
(COMELEC) within one hundred twenty (120) days from the explained that there are various adverse effects of the conversion
date of effectivity of the law or ordinance effecting such action, of the city and how it will cause material change not only in the
unless said law or ordinance fixes another date. political and economic rights of the city and its residents but also
With regard to the requirement of a plebiscite, the Supreme of the province as a whole. The conversion will result in the
Court in Umali v. COMELEC1329 clarified that the phrase "by the reduction of the territory of the province as well as its share in
qualified voters therein" in Section 453 of the LGC means the the internal revenue allotment, and its share in the taxes collected
qualified voters not only in the city proposed to be converted but by the City of Malumanay. Further, the City of Malumanay will
also the voters of the political units directly affected by such be under the supervision of the President instead of the Province
of Laguna and the decisions of the City of Malumanay in
administrative cases involving barangay officials will no longer
be appealable to the Sangguniang Panlalawigan. The registered
1322 Surigao Electric Co., Inc. v. Municipality of Surigao, G.R. No. L-22766, 30
August 1968.
1328 Torio v. Fontanilla, G.R. No. L-29993, L-30183, 23 October 1978. 1330 BAR 2016.
1329 G.R. No. 203974, 22 April 2014. 1331 G.R. No. 203974, 22 April 2014.
 572 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 573
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voters of the City of Malumanay will also no longer be entitled expressly provided in Article 9 (2) of the LGC-IRR, the
to vote for provincial officials. inclusion was intended to correct the congressional oversight in
Section 461 of the LGC — and to reflect the true legislative
Q: From an existing province (Wideland), Congress created intent. It would, then, be in order for the Court to uphold the
a new province, Hundred Isles, consisting of several islands,
validity of Article (2) of the LGC-IRR.
with an aggregate area of 500 square kilometers. The law
creating Hundred Isles was duly approved in a plebiscite Q: What is the nature of the power of creation of LGUs?
called for that purpose. Juan, a taxpayer and a resident of
Wideland, assailed the creation of Hundred Isles claiming A: The power to create LGUs is inherently legislative. To grant
that it did not comply with the area requirement as set out in the President the power to create or abolish municipal corporations
the LGC (i.e., an area of at least 2,000 square kilometers). would allow him to exercise over LGUs the power of control
The proponents justified the creation, however, pointed out denied to him by the Constitution.1334 The power to create
that the Rules and Regulations Implementing the LGC states provinces cannot be delegated.
that "the land area requirement shall not apply where the
proposed province is composed of one (1) or more islands." Q: What are the indicators for the creation or conversion of
accordingly, since the new province consists of several islands, an LGU?
the area requirement need not be satisfied. How tenable is A: Under the LGC, the creation of an LGU or its conversion
the position of the proponents?1332 from one level to another level shall be based on verifiable
A: The position of the proponents is tenable. In the case of indicators of viability and projected capacity to provide services,
Navarro v. Ermita1333, the Supreme Court clarified that when the to wit:
local government unit to be created consists of one (1) or more 1. Income - It must be sufficient, based on acceptable
islands, it is exempt from the land area requirement as expressly standards, to provide for all essential government facilities
provided in Section 442 and Section 450 of the LGC if the local and services and special functions commensurate with
government unit to be created is a municipality or a component the size of its population, as expected of the local
city. There appears neither rhyme nor reason why this exemption government unit concerned;
should apply to cities and municipalities, but not to provinces. In
fact, considering the physical configuration of the Philippine 2. Population - It shall be determined as the total number
archipelago, there is a greater likelihood that islands or group of of inhabitants within the territorial jurisdiction of the
islands would form part of the land area of a newly-created local government unit concerned; and
province than in most cities or municipalities. It is, therefore,
3. Land Area - It must be contiguous unless it comprises
logical to infer that the genuine legislative policy decision was
two or more islands or is separated by a local government
expressed in Section 442 (for municipalities) and Section 450
unit independent of the others; properly identified by
(for component cities) of the LGC, but was inadvertently omitted
metes and bounds with technical descriptions; and sufficient
in Section 461 (for provinces). Thus, when the exemption was

1332 BAR 2014.

1333 G.R. No. 180050, 12 April 2011. 1334 Pelaez v. Auditor General, G.R. No. L-23825, 24 December 1965.
574 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 575
ON POLITICAL LAW

to provide for such basic services and facilities to meet Q: What are the limitations as regards the division LGUs?
the requirements of its populace.
A: Under the LGC, the division of LGUs should not reduce the
Compliance with the foregoing indicators shall be attested to by income, population, or land area of the LGU or LGUs concerned
the Department of Finance (DOF), the National Statistics Office to less than the minimum requirements prescribed. Also, the
(now the Philippine Statistics Agency), and the Lands Management income classification of the original LGU or LGUs shall not fall
Bureau (LMB) of the Department of Environment of Natural below its current classification prior to the division.
Resources.
Q: When can an LGU be abolished?
Q: What are the requirements for the creation of a specific LGU?
A: An LGU may be abolished when its income, population, or
A: For a certain LGU to be created, the following minimum land area has been irreversibly reduced to less than the minimum
requirements must be met: standards prescribed for its creation as certified by the national
agencies concerned to the Congress or the sanggunian. There
LGU Income Population Land Area can be no automatic abolition. The Congress or the sanggunian
(Average annual (if concerned must pass a law or an ordinance for the abolition of
income for the last Contiguous) such LGU, subject to the mandatory requirement of a plebiscite.
2 consecutive years)
Province P20 million 250,000 2000 km2 Q: Differentiate an independent component city from an
(1991 constant ordinary component city.
prices) A: An independent component city and an ordinary component
Highly P50 million 200,000 100 km2 city are both component cities as distinguished from highly
Urbanized (1991 constant urbanized cities. The only difference between them is that the
City (HUC) prices) charters of the independent component cities prohibit their voters
Component P100 million 150,000 100 km2 from voting for provincial elective officials and such cities are
City independent of the provinces in which they are located. ' 5
(2000 constant
prices) Q: How are boundary disputes among LGUs settled?
Municipality P2.5 million 25,000 50 km2
(1991 constant A: Section 118 of the LGC provides that boundary disputes
between and among LGUs shall, as much as possible, be settled
prices)
amicably. The same shall be settled by the following:
Barangay None 2,000 or None
5,000 for 1. Boundary disputes involving two (2) or more barangays
barangays in the same city or municipality shall be referred for settlement
in Metro to the Sangguniang Panlungsod or bayan concerned.
Manila and
in HUCs
1335 Dissenting Opinion of J. Mendoza, Miranda v. Aguirre, G.R. No. 133064, 16
September 1999.
 576 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 577
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2. Boundary disputes involving two (2) or more municipalities 1. Powers of Local Government Units
within the same province shall be referred for settlement
to the Sangguniang Panlalawigan concerned. Q: What are the sources of power of LGUs under the 1987
Constitution?
3. Boundary disputes involving municipalities or component
cities of different provinces shall be jointly referred for A: Under the 1987 Constitution, LGUs have the following powers:
settlement to the sanggunians of the province concerned. 1. The State shall ensure the autonomy of local governments.
4. Boundary disputes involving a component city or
2. Each local government unit shall have the power to create
municipality on the one hand and a highly urbanized city its own sources of revenues and to levy taxes, fees, and
on the other, or two (2) or more highly urbanized cities, charges subject to such guidelines and limitations as the
shall be jointly referred for settlement to the respective Congress may provide, consistent with the basic policy
sanggunians of the parties. of local autonomy. Such taxes, fees, and charges shall
5. In the event the sanggunian fails to effect an amicable accrue exclusively to the local governments.
settlement within sixty (60) days from the date the
3. Local government units shall have a just share, as
dispute was referred thereto, it shall issue a certification
determined by law, in the national taxes which shall be
to that effect. Thereafter, the dispute shall be formally
automatically released to them.
tried by the sanggunian concerned which shall decide
the issue within sixty (60) days from the date of the 4. Local governments shall be entitled to an equitable share
certification referred to above. in the proceeds of the utilization and development of the
national wealth within their respective areas, in the manner
Within the time and manner prescribed by the Rules of Court,
provided by law, including sharing the same with the
any party may elevate the decision of the sanggunian concerned
inhabitants by way of direct benefits.
to the proper Regional Trial Court having jurisdiction over the
area in dispute. The Regional Trial Court shall decide the appeal a. Police Power and General Welfare Clause
within one (1) year from the filing thereof. Pending final
resolution of the disputed area prior to the dispute shall be Q: What is the basis for the exercise of the police power
maintained and continued for all legal purposes. 1336 of LGUs?

Q: Who has jurisdiction over boundary disputes between and A: The police power of the State is a delegated power to the
among LGUs not covered under Section 118 of the LGC? LGUs, generally exercised by them under the General Welfare
clause of the LGC. The provisions provide that every LGU shall
A: Boundary disputes between municipalities and independent exercise the powers expressly granted, those necessarily implied
component cities may fall under the jurisdiction of regional trial therefrom, as well as the powers necessary, appropriate, or
courts pursuant to BP 129, Sec. 19(6).1337 incidental for its efficient and effective governance, and those
which are essential to the promotion of the general welfare.

1336 LGC, Sec. 119.

1337 Municipality of Kananga v. Madrona, G. R. No. 141375, 30 April 2003.
 578 LOCAL GOVERNMENTS 579
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Q: What is the General Welfare Clause under the LGC? State. A valid delegation of police power may arise from express
delegation, or be inferred from the mere fact of the creation of
A: Section 16 of the LGC provides that every LGU shall
the municipal corporation; and as a general rule, municipal
exercise the powers expressly granted, those necessarily implied
corporations may exercise police powers within the fair intent
there from, as well as powers necessary, appropriate, or incidental
and purpose of their creation which are reasonably proper to give
for its efficient and effective governance, and those which are
effect to the powers expressly granted, and statutes conferring
essential to the promotion of the general welfare. Within their
powers on public corporations have been construed as empowering
respective territorial jurisdictions, LGUs shall ensure and support,
them to do the things essential to the enjoyment of life and
among other things, the preservation and enrichment of culture, 1339
desirable for the safety of the people.
promote health and safety, enhance the right of the people to a
balanced ecology, encourage and support the development of Q: Explain the two-pronged test in order for a police power
appropriate and self-reliant scientific and technological capabilities, measure to be considered valid.
improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain A: To be considered as a valid police power measure, an
peace and order, and preserve the comfort and convenience of ordinance must pass a two-pronged test: the formal (i.e., whether
their inhabitants. the ordinance is enacted within the corporate powers of the local
government unit, and whether it is passed in accordance with the
Q: What are the branches of the general welfare clause? procedure prescribed by law); and the substantive (i.e., involving
inherent merit, like the conformity of the ordinance with the
A: The general welfare clause has two branches. The first,
limitations under the Constitution and the statutes, as well as
known as the general legislative power, authorizes the municipal
with the requirements of fairness and reason, and its consistency
council to enact ordinances and make regulations not repugnant 1340
with public policy).
to law, as may be necessary to carry into effect and discharge the
powers and duties conferred upon the municipal council by law. Q: The Sangguniang Panlungsod of Pasay City passed an
The second, known as the police power proper, authorizes the ordinance requiring all disco pub owners to have all their
municipality to enact ordinances as may be necessary and proper hospitality girls tested for the AIDS virus. Both disco pub
for the health and safety, prosperity, morals, peace, good order, owners and the hospitality girls assailed the validity of the
comfort, and convenience of the municipality and its inhabitants, ordinance for being violative of their constitutional rights to
and for the protection of their property.1338 privacy and to freely choose a calling or business. Is the
ordinance valid? Explain.1'
Q: Is police power and inherent power of LGUs?
A: Police power is inherent in the state but not in municipal
corporations. Before a municipal corporation may exercise such
power, there must be a valid delegation of such power by the
legislature which is the repository of the inherent powers of the
1339 Buklod Nang Magbubukid sa Lupaing Ramos, Inc. v E. M Ramos and Sons,
Inc., G.R. Nos. 131481 & 131624, 16 March 2011.
1340 Mosqueda v. Pilipino Banana Growers & Exporters Association, Inc., G.R. Nos.
189185 & 189305, 16 August 2016.
1338 Rural Bank ofMakati v. Municipality ofMakati, G.R. No. 150763, 02 July 2004. 1341 BAR 2010.
 580 LOCAL GOVERNMENTS 581
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A: The ordinance is valid. In Social Justice Society v. welfare for the benefit of the poor and the landless, upon
Dangerous Drugs Board, '342 the Supreme Court explained that payment of just compensation, pursuant to the provisions of the
the right to privacy yields to certain paramount rights of the Constitution and pertinent laws; provided, however, that the
valid
public and defers to the exercise of police power. The State, in power of eminent domain may not be exercised unless a
order to promote the general welfare, may interfere with personal to the owner, and
and definite offer has been previously made
liberty, with property, and with business and occupations. such offer was not accepted by the latter.
Persons and property may be subjected to all kinds of restraints
power of
and burdens, in order to secure the general comfort, health, and Q: What are the requisites for the exercise of
prosperity of the State . . . To this fundamental aim of the eminent domain by LGUs?
Government, the rights of the individual are subordinated. before an
Persons licensed to pursue occupations which may in the public A: The following essential requisites must concur
need and interest be affected by the exercise of the police LGU can exercise the power of eminent domain:
power
embark in those occupations subject to the disadvantages legislative
which 1. An ordinance has been enacted by the local
may result from the legal exercise of that power.143 Here,
the council authorizing the local chief executive, on behalf
ordinance does not prohibit the disco pub owners and the of the LGU, to exercise the power of eminent domain
hospitality girls from pursuing their calling or business but is or pursue expropriation proceedings over a particular
merely regulating it. private property.
Q: Can a Barangay Assembly exercise any police power?144 2. The power of eminent domain is exercised for public
A: No, a Barangay Assembly cannot exercise any police use, purpose, or welfare, or for the benefit of the poor
power. and the landless.
Under Section 398 of the LGC, a Barangay Assembly can
only required
recommend to the Sangguniang Barangay the adoption of 3. There is payment of just compensation, as
measures for the welfare of the barangay and the city or under Section 9, Article III of the Constitution, and other
municipality concerned. pertinent laws.
b. Eminent Domain and Taxation 4. A valid and definite offer has been previously made to
the owner of the property sought to be expropriated, but
Q: What is the legal basis for the exercise of the said offer was not accepted.'
power of
eminent domain by LGUs? 346 Court
In Spouses Yusay v. Court of Appeals,' the Supreme
A: Section 19 of the LGC provides that an LGU may, clarified that a mere resolution will not satisfy the requirement
through
absence
its chief executive and acting pursuant to an ordinance,
exercise that the mayor be authorized through an ordinance. The
the power of eminent domain for public use, or purpose, of an ordinance authorizing the same is equivalent to lack of
or
cause of action.
1342
G.R. Nos. 157870, 158633 &161658, 03 November 2008.
127820, 20
1313 Ermita-Malate Hotel and Motel Operations Association, Inc. v. City
Mayor of 1345 Municipality of Parailaque v. V.M. Realty Corporation, G.R. No.
Manila, G.R. No. L-24693, 23 October 1967. July 1998.
1341
BAR 2003. '346 G.R. No. 156684, 06 April 2011.
 582 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 583
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Q: When can an LGU take possession of the property to be Q: What constitutes a valid offer?
expropriated?
A: For an offer to be valid, it must be complete, clearly
A: The LGU may immediately take possession of the property indicating the kind of contract intended and definitely stating the
upon the filing of the expropriation proceedings and upon essential conditions of the proposed contract. It must also be
making a deposit with the proper court of at least fifteen percent reasonable and made in good faith, not merely perfunctory or
(15%) of the fair market value of the property based on the pro forma. The offer to buy shall be in writing, and must specify
current tax declaration of the property to be expropriated. the property sought to be acquired, the reasons for its acquisition,
347
Note that the amount to be paid for the expropriated property and the price offered.'
shall be determined by the proper court, based on the fair market
Q: The Sangguniang Bayan of the Municipality of Santa,
value at the time of the taking of the property.
Ilocos Sur passed Resolution No. 1 authorizing its Mayor to
Q: What are the differences between the power of eminent initiate a petition for the expropriation of a lot owned by
domain of the National Government and the LGUs? Christina as a site for its municipal sports center. This was
approved by the Mayor. However, the Sangguniang Panlalawigan
A: The differences can be summarized, as follows: of Ilocos Sur disapproved the Resolution as there might still
be other available lots in Santa for a sports center.
Eminent Domain by Eminent Domain by LGU Nonetheless, the Municipality of Santa, through its Mayor,
National Government filed a complaint for eminent domain. Christina opposed this
It is an inherent power of the It is a delegated power by Congress. on the following grounds: (a) the Municipality of Santa has
State. no power to expropriate; and (b) the Municipality of Santa
As an inherent power, there is A valid ordinance is required in has other and better lots for the purpose. Resolve the case
no law needed for the National order for the LGU to exercise with reasons.13"
Government to exercise such such power.
power. A: The Municipality of Santa has the power to expropriate. The
basis for the exercise of the power of eminent domain by local
The fair market value is The fair market value is computed government units is Section 19 of the LGC. However, the law is
computed at the time of the at the time of taking. clear and free from ambiguity that Section 19 of the Code
filing of the expropriation requires an ordinance, not a resolution, for the exercise of the
proceedings. power of eminent domain.'
The assessed value of the Only 15% of the fair market
property is required to be value is required to be deposited in With regard the second ground, the Supreme Court in the case of
deposited in order to take order to take immediate possession Municipality of Meycauayan v. Intermediate Appellate Court's°
immediate possession of the of the property. explained that the government may not capriciously choose what
property.
A formal and definite offer A formal and definite offer is
1347 JILCF v. Municipality of Pasig, G.R. No. 152230, 09 August 2005.
is required. required. 1348 BAR 2005.
1349
Heirs ofSuguitan v. City of Mandaluyong, G.R. No. 135087, 14 March 2000.
'35° G.R. No. 72126, 29 January 1988.
 584 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 585
ON POLITICAL LAW

private property should be taken. With due recognition then of a. be equitable and based as far as practicable on the
the power of Congress to designate the particular property to be taxpayer's ability to pay;
taken and how much thereof may be condemned in the exercise
of the power of expropriation, it is still a judicial question b. be levied and collected only for public purposes;
whether in the exercise of such competence, the party adversely c. not be unjust, excessive, oppressive, or confiscatory;
affected is the victim of partiality and prejudice. That the equal
protection clause will not allow. Here, there is absolutely no d. not be contrary to law, public policy, national economic
showing why Christina's lot is more appropriate for the municipal policy, or in the restraint of trade;
sports center. Furthermore, the Sangguniang Panlalawigan of
Ilocos Sur already disapproved the Resolution considering that 3. The collection of local taxes, fees, charges and other
there might still be other available lots.As such, the complaint impositions shall in no case be let to any private person;
for eminent domain should be denied. 4. The revenue collected pursuant to the provisions of the
LGC shall inure solely to the benefit of, and be subject
Q: What are the legal bases for the taxing power of LGUs?
to the disposition by, the LGU levying the tax, fee,
A: Under the Constitution, each LGU shall have the power to charge or other imposition unless otherwise specifically
create its own sources of revenues and to levy taxes, fees, and provided; and,
charges subject to such guidelines and limitations as the
5. Each local government unit shall, as far as practicable,
Congress may provide, consistent with the basic policy of local
evolve a progressive system of taxation.
autonomy. Such taxes, fees, and charges shall accrue exclusively
to the local governments. Q: Can LGUs levy taxes on the National Government?
Further, Section 18 of the LGC provides that LGUs shall have A: No, Section 133(o) of the LGC recognizes the basic principle
the power and authority to establish an organization that shall be that local governments cannot tax the National Government,
responsible for the efficient and effective implementation of their which historically merely delegated to local governments the
development plans, program objectives and priorities; to create power to tax. While the 1987 Constitution now includes taxation
their own sources of revenues and to levy taxes, fees, and charges as one of the powers of local governments, local governments
which shall accrue exclusively for their use and disposition, and may only exercise such power "subject to such guidelines and
which shall be retained by them. limitations as the Congress may provide".135'
Q: What are the fundamental principles of local taxation? Q: Who has the power to review and revoke tax ordinances?
A: The following fundamental principles shall govern the exercise A: Section 187 of the LGC provides that any question on the
of the taxing and other revenue-raising powers of LGUs: constitutionality or legality of tax ordinances or revenue
1. Taxation shall be uniform in each LGU; measures may be raised on appeal within thirty (30) days from
the effectivity thereof to the Secretary of Justice who shall render
2. Taxes, fees, charges, and other impositions shall:

135I Republic v. City of Parailaque, G.R. No. 191109, 18 July 2012.

 586 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 587
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a decision within sixty (60) days from the date of receipt of Q: What is the relationship of local ordinances vis-à-vis
the appeal. national laws?
Section 187 authorizes the Secretary of Justice to review only the A: The rationale of the requirement that the ordinances should
constitutionality or legality of the tax ordinance and, if warranted, to not contravene a statute is obvious. Municipal governments are
revoke it on either or both of these grounds. When he alters or only agents of the National Government. Local councils exercise
modifies or sets aside a tax ordinance, he is not also permitted to only delegated legislative powers conferred on them by Congress
substitute his own judgment for the judgment of the local as the national lawmaking body. The delegate cannot be superior
government that enacted the measure."' to the principal or exercise powers higher than those of the latter.
The appeal shall not suspend the effectivity of the ordinance and It is a heresy to suggest that the LGUs can undo the acts of
Congress, from which they have derived their power in the first place
the accrual and payment of the tax, fee, or charge levied therein. 1353
and negate by mere ordinance the mandate of the statute.
Within thirty (30) days after receipt of the decision or the lapse
of the sixty-day period without the Secretary of Justice acting Q: Should an appropriation ordinance be accompanied by
upon the appeal, the aggrieved party may file the appropriate an authorization from the sanggunian before the local chief
proceedings with a court of competent jurisdiction. executive can enter into a contract?

c. Requisites of a Valid Ordinance; Local Initiative and A: In the landmark case of Quisumbing v. Garcia,[354 the Court
delineated when a Sangguniang Bayan authorization is still
Referendum
necessary to accompany the appropriation ordinance and when it
Q: Who exercises local legislative power? is not. Depending on the circumstances of the case, if the project
is provided for in sufficient detail in the appropriation ordinance,
A: Section 48 of the LGC provides that the local legislative meaning the transactions, bonds, contracts, documents, and other
power shall be exercised by the Sangguniang Panlalawigan for obligations the mayor would enter into on behalf of the
the province; the Sangguniang Panlungsod for the city; the municipality, are enumerated, then no separate authorization is
Sangguniang Bayan for the municipality; and the Sangguniang necessary. On the other hand, if the project is merely couched in
Barangay for the barangay. general and generic terms, then a separate approval by the
Sangguniang Bayan in accordance with law is required.
Q: Who are the presiding officers of the sanggunian?
Q: What are the requisites of a valid ordinance?
A: The vice-governor shall be the presiding officer of the Sangguniang
Panlalawigan; the city vice-mayor, of the Sangguniang Panlungsod; A: For an ordinance to be valid, it must not only be within the
the municipal vice-mayor, of the Sangguniang Bayan; and the corporate powers of the LGU to enact and be passed according
punong barangay, of the Sangguniang Barangay. The presiding to the procedure prescribed by law, it must also conform to the
officer shall vote only to break a tie. following substantive requirements:

1352
B53 Magtajas v. Pryce Properties Corp., Inc., G.R. No. 111097, 20 July 1994.
Drilon v. Lint G.R. No. 112497, 04 August 1994. 1354 G.R. No. 175527, 08 December 2008.
 588 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 589
ON POLITICAL LAW

1. it must not contravene the Constitution or any statute; and industrial expansion shall be taken into consideration
plans.'358
2. it must not be unfair or oppressive; in the preparation of such

3. it must not be partial or discriminatory; 4. Tax Ordinance - Local government units may exercise
the power to levy taxes, fees or charges on any base or
4. it must not prohibit but may regulate trade; subj ect not otherwise specifically enumerated herein or
taxed under the provisions of the National Internal Revenue
5. it must be general and consistent with public policy; and Code, as amended, or other applicable laws: Provided,
6. it must not be unreasonable. 1355 That the taxes, fees, or charges shall not be unjust, excessive,
oppressive, confiscatory or contrary to declared national
Q: Provide examples of Ordinances under the LGC. policy: Provided, further, That the ordinance levying
such taxes, fees or charges shall not be enacted without
A: The following are examples of ordinances under the LGC: any prior public hearing conducted for the purpose.1'
1. Annual Appropriations Ordinance - On or before the
Q: On January 1, 1994, the Revenue Code of the Municipality
end of the current fiscal year, the Sanggunian concerned
of Muntinlupa took effect which, among others, imposed a
shall enact, through an ordinance, the annual budget of
franchise tax on private persons or corporations operating
the local government unit for the ensuing fiscal year on
public utilities within its territorial jurisdiction. MERALCO
the basis of the estimates of income and expenditures
instituted a Petition with Prayer for a Writ of Preliminary
submitted by the local chief executive.'
Injunction before the Regional Trial Court to assail the
2. Ordinances with Penal Sanctions - Ordinances with provision imposing the said franchise tax, claiming it as null
penal sanctions are required to be posted at prominent and void for being contrary to law, unjust and confiscatory.
places in the provincial capitol, city, municipal or Is the provision of the ordinance valid?
barangay hall, as the case may be, for a minimum period
A: The Supreme Court in the case of MERALCO v. City of
of three (3) consecutive weeks.'
Muntinlupa' declared that the said provision is null and void
3. Zoning Ordinance -The local government units shall, in for being ultra vires. The two tests in determining the validity of
conformity with existing laws, continue to prepare their an ordinance are the Formal Test and the Substantive Test. The
respective comprehensive land use plans enacted through Formal Test requires the determination of whether the ordinance
zoning ordinances which shall be the primary and dominant was enacted within the corporate powers of the LGU, and
bases for the future use of land resources: Provided, That whether the same was passed pursuant to the procedure laid
the requirements for food production, human settlements, down by law. Meanwhile, the Substantive Test primarily assesses
the reasonableness and fairness of the ordinance and significantly its
compliance with the Constitution and existing statutes. Applying

1353 Legaspi v. Cebu City, G.R. No. 159110, 10 December 2013. 1358 LGC, Sec. 20(c).
1356 LGC, Sec. 319. 1359 LGC, Sec. 186.
1357 LGC, Sec. 511. 1360 G.R. No. 198529, 09 February 2021.
 LOCAL GOVERNMENTS 591
590 COMPENDIOUS BAR REVIEWER
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the Formal Test, the passage of the subject ordinance was beyond of the Sangguniang Panlungsod considering that he is mandated
the corporate powers of the then Municipality of Muntinlupa, under Section 49 of the LGC to vote to break a tie. To construe
hence, it is ultra vires. Meanwhile, based on the Substantive otherwise would create an anomalous and absurd situation where
Test, the said provision deviated from the express provision of the presiding officer who votes to break a tie during a Sanggunian
Republic Act No. 7160. Section 142 in relation to Sections 134, session is not considered a "member" of the Sanggunian.1361
137 and 151 of Republic Act No. 7160 grants only provinces and
cities the power to impose, levy, and collect a franchise tax. Q: Who reviews the ordinances enacted by the Sanggunian?
Muntinlupa being then a municipality, definitely had no power
or authority to enact the subject franchise tax ordinance. A: Ordinances and resolutions by component cities and municipalities
shall be reviewed by the Sangguniang Panlalawigan while
Q: What is the process for the approval of ordinances? ordinances enacted by the Sangguniang Barangay shall be
reviewed by the Sangguniang Panlungsod or Sangguniang
A: Under Section 54 of the LGC, every ordinance enacted by Bayan. If no action has been taken by the respective sanggunian
the sanggunian shall be presented to the local chief executive. In within thirty (30) days after submission of such an ordinance or
case of approval, he shall affix his signature on each and every resolution, the same shall be presumed consistent with law and
page thereof; otherwise, he shall veto it and return the same with therefore valid.
his objections to the sanggunian, which may proceed to reconsider
the same. Q: Who has the power to review appropriation ordinances?
The sanggunian concerned may override the veto of the local A: The Department of Budget and Management shall review
chief executive by two-thirds (2/3) vote of all its members, ordinances authorizing the annual or supplemental appropriations of
thereby making the ordinance or resolution effective for all legal provinces, highly-urbanized cities, independent component cities,
intents and purposes. and municipalities within the Metropolitan Manila Area. The
Sangguniang Panlalawigan shall review the ordinance authorizing
For ordinances enacted by the Sangguniang Barangay, they shall annual or supplemental appropriations of component cities and
be signed by the punong barangay upon approval by the municipalities in the same manner and within the same period
majority of all its members. prescribed for the review of other ordinances.' Copies of barangay
ordinance authorizing the annual appropriations shall be furnished
Q: Is the vice-mayor a member of the Sanggunian?
the Sangguniang Panlungsod or the Sangguniang Bayan.13"
A: The LGC clearly states that the Sangguniang Panlungsod
"shall be composed of the city vice-mayor as presiding officer, Q: When do ordinances or resolutions take effect?
the regular sanggunian members, the president of the city chapter of A: Section 59 of the LGC provides that unless otherwise stated
the liga ng mga barangay, the president of the panlungsod na in the ordinance or the resolution approving the local development
pederasyon ng mga sangguniang kabataan, and the sectoral plan and public investment program, the same shall take effect
representatives, as members." As the presiding officer, the vice-
mayor can vote only to break a tie. In effect, the presiding officer
votes when it matters the most, that is, to break a deadlock in the
1361 La Carlota City, Negros Occidental v. Rojo, G.R. No. 181367, 24 April 2012.
votes. Clearly, the vice-mayor, as presiding officer, is a "member" 1362 LGC, Sec. 326-327.
1363
LGC, Sec. 333.
 592 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 593
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after ten (10) days from the date a copy thereof is posted in a the Municipality of Bulalakaw clearly has the power to exercise
bulletin board at the entrance of the provincial capitol or city, the right of eminent domain and its Sangguniang Bayan the
366
municipal, or barangay hall, as the case may be, and in at least capacity to promulgate said ordinance.'
two (2) other conspicuous places in the LGU concerned.
Q: True or False. Re-classification of agricultural lands by a
Q: Can the Liga ng mga Barangay exercise legislative powers? local government unit is done through a resolution."67
A: No, the Liga ng mga Barangay cannot exercise legislative
powers. It is not an LGU but a government organization, being
an association, federation, league or union created by law or by
I A: False. Under Section 20 of the LGC, a city or municipality
may, through an ordinance passed by the sanggunian after
conducting public hearings for the purpose, authorize the
authority of law, whose members are either appointed or elected reclassification of agricultural lands and provide for the manner
government officials. The LGC defines the Liga ng mga Barangay of their utilization or disposition in the following cases: (1) when the
as an organization of all barangays for the primary purpose of land ceases to be economically feasible and sound for agricultural
determining the representation of the liga in the sanggunians, purposes as determined by the Department of Agriculture; or (2)
and for ventilating, articulating and crystallizing issues affecting where the land shall have substantially greater economic value
barangay government administration and securing, through for residential, commercial or industrial purposes, as determined
proper and legal means, solutions thereto.' by the sanggunian concerned.
Q: The Municipality of Bulalakaw, Leyte, passed Ordinance Q: What is the legal basis for the power of LGUs regarding
No. 1234, authorizing the expropriation of two parcels of closure and opening of roads?
land situated in the poblacion as the site of a freedom park,
and appropriating the funds needed therefor. Upon review, A: Section 21 of the LGC provides that an LGU may, pursuant
the Sangguniang Panlalawigan of Leyte disapproved the to an ordinance, permanently or temporarily close or open any
ordinance because the municipality has an existing freedom local road, alley, park, or square falling within its jurisdiction.
park which, though smaller in size, is still suitable for the
purpose, and to pursue expropriation would be needless Q: What are the rules regarding permanent closure of roads?
expenditure of the people's money. The sanggunian, however A: In case of permanent closure, the ordinance must be approved
did not provide any evidentiary proof before the court to support by at least two-thirds (2/3) of all the members of the sanggunian,
such allegation. Is the disapproval of the ordinance correct?1365 and when necessary, an adequate substitute for the public facility
A: The disapproval of the ordinance is incorrect. Under Section that is subject to closure shall be provided. No way or place or
56(c) of the LGC, the Sangguniang Panlalawigan can declare any part thereof shall be permanently closed without making
the ordinance invalid only if it is beyond the power of the provisions for the maintenance of public safety therein. Also, no
freedom park shall be closed permanently without provision for
Sangguniang Bayan. Here, the Sangguniang Panlalawigan was
without the authority to disapprove Ordinance No. 1234 since its transfer or relocation to a new site.

[364 Bito-Onon v. Fernandez, G.R. No. 139813, 31 January 2001. 1366 Moday v. Court of Appeals, G.R. No. 107916, 20 February 1997.
'363 BAR 2009. 1367 BAR 2010.
 594 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 595
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Q: What are the rules regarding temporary closure of roads? Q: What is the procedure for local initiative?
A: LGUs may temporarily close roads subject to the following rules: A: The process for local initiative is as follows:
1. Any national or local road, alley, park, or square may be 1. File a petition with local legislature. Not less than 1,000
temporarily closed during an actual emergency, or fiesta registered voters in case of provinces and cities, 100 in
celebrations, public rallies, agricultural or industrial case of municipalities, and 50 in case of barangays, may
fairs, or an undertaking of public works and highways, file a petition with the local legislative body, proposing
telecommunications, and waterworks projects, the duration the adoption, enactment, repeal, or amendment, of any
of which shall be specified by the local chief executive ordinance or resolution.
concerned in a written order.
2. Invoke initiative by giving notice. If no favorable
2. No national or local road, alley, park, or square shall be action thereon is made by local legislative body within
temporarily closed for athletic, cultural, or civic activities 30 days from its presentation, the proponents, through
not officially sponsored, recognized, or approved by the their duly authorized and registered representatives may
LGU concerned. invoke their power of initiative, giving notice thereof to
the local legislative body concerned. Two or more
3. Any city, municipality, or barangay may, by a duly
propositions may be submitted in an initiative.
enacted ordinance, temporarily close and regulate the
use of any local street, road, thoroughfare, or any other 3. Collection of signatures. Proponents shall have 90 days
public place where shopping malls, Sunday, flea or night in case of provinces and cities, 60 days in case of
markets, or shopping areas may be established and municipalities, and 30 days in case of barangays, from
where goods, merchandise, foodstuffs, commodities, or notice to collect the required number of signatures. The
articles of commerce may be sold and dispensed to the petition shall be signed before the Election Registrar, or
general public. his designated representative, in the presence of a
representative of the proponent and a representative of
Q: What is local initiative and referendum? the local legislative body concerned in a public place in
A: The LGC defines local initiative as the legal process whereby the LGU.
the registered voters of an LGU may directly propose, enact, or 4. Certification of COMELEC and setting of date of
amend any ordinance. On the other hand, local referendum is the vote. The Commission on Elections shall certify that the
legal process whereby the registered voters of the LGUs may required number of signatures has been obtained and
approve, amend, or reject any ordinance enacted by the shall set a date for approval of the proposition within 60
sanggunian.The local referendum shall be held under the control days from the date of such certification in case of
and direction of the Commission on Elections. provinces and cities, 45 days in case of municipalities,
The power of local initiative and referendum may be exercised and 30 days in case of barangays.
by all registered voters of the provinces, cities, municipalities, 5. Voting and Results. The results of the initiative shall be
and barangays. certified and proclaimed by the Commission on Elections.
 596 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 597
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Q: What are the limitations on local initiative? 3. To have and use a corporate seal;
A: Under Section 24 of the LGC, a local initiative is subject to 4. To acquire and convey real or personal property;
the following limitations:
5. To enter into contracts; and
1. The power of local initiative shall not be exercised more
than once a year; 6. To exercise such other powers as are granted to corporations,
subject to the limitations provided in the LGC and other laws.
2. Initiative shall extend only to subjects or matters which
are within the legal powers of the sanggunian to enact; and Q: In what capacity do LGUs own property?
3. If at any time before the initiative is held, the sanggunian A: LGUs may own properties in two capacities: governmental
concerned adopts in toto the proposition presented and or proprietary capacity. If the property is owned by the LGU in
the local chief executive approves the same, the initiative its public and governmental capacity, the property is public, and
shall be cancelled. However, those against such action Congress has absolute control over it. On the other hand, if the
may, if they so desire, apply for initiative in the manner property is owned in its private or proprietary capacity, then it is
368
provided under the LGC. patrimonial, and Congress has no absolute control over the same.'

Q: What is the limitation on the sanggunian with regard to Q: Does the grant of consent to be sued mean that the LGUs
propositions or ordinances approved through local initiative are liable?
or referendum?
A: The fact that they are suable does not necessarily mean that
A: Any proposition or ordinance approved through the system they are liable. Reference must be had to the applicable law and
of initiative and referendum provided shall not be repealed, established facts to determine their liability.' The Congressional
modified, or amended by the sanggunian concerned within six grant of the consent to be sued only means that the State gives up
(6) months from the date of the approval thereof The same may its immunity from suit. This does not concede liability, but
be amended, modified, or repealed by the sanggunian within merely allows the plaintiff a chance to prove, if it can, that the
three (3) years thereafter by a vote of three-fourths (3/4) of all its State or its officials are liable.'"
members. In the case of barangays, the period shall be eighteen
(18) months after the approval thereof. Q: What are the requisites for an LGU to enter into a valid
contract?
d. Corporate Powers
A: The requisites of a valid municipal contract are:
Q: What are the corporate powers of LGUs?
1. It is entered into by the local chief executive on behalf of
A: Under Section 22 of the LGC, every LGU as a corporation, the LGU;
shall have the following powers:
1. To have continuous succession in its corporate name; 1368 Province of Zamboanga Del Norte v. City of Zamboanga, G.R. No. L-24440, 28
March 1968.
2. To sue and be sued; 1369 San Fernando, La Union v. Firme, G.R. No. L-52179, 08 April 1991.
13"United States ofAmerica v. Guinto, G.R. No. 76607, 26 February 1990.
 598 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 599
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2. There is prior authorization by sanggunian concerned; and Q: In 2003, the City Council or the Sangguniang Panlungsod
ng Malabon presided over by then Acting Vice-Mayor Mr.
3. A legible copy of the contract is posted at a conspicuous
G, approved a City Ordinance granting authority to the City
place in the provincial capitol or city, municipal or
Vice-Mayor, Mr. Y, to negotiate and enter into a contract for
barangay hall.
consultancy services. In 2005, the new Vice-Mayor, Mr. V,
Note that in the case of Lao v. LGU of Cagayan de Oro,1371 the entered into another contract for consultancy services.
Supreme Court explained that since the sanggunian is the source However, this was disallowed by the City Auditor's Office.
of the local chief executive's power to execute contracts for the Vice-Mayor Mr. V contends that the 2003 City Ordinance
LGU, its members have the authority, interest, and even duty to empowered the Vice-Mayor to enter into such a contract. Is
file cases on behalf of the LGU to restrain the execution of Vice-Mayor Mr. V correct?
contracts entered into by the local chief executive in violation of A: In the case of Vicencio v. Villar, i373 the Supreme Court ruled
the LGC.
that there is no inherent authority on the part of the city vice-
Q: What is an ultra vires act? mayor to enter into contracts on behalf of the LGU, unlike that
provided for the city mayor. Hence, his power to enter into
A: Generally, an ultra vires act is one committed outside the contracts must be expressly granted by ordinance. The subject
object for which a corporation is created as defined by the law of ordinance is clear and precise and leaves no room for interpretation.
its organization and therefore beyond the powers conferred upon It only authorized the then City Vice-Mayor to enter into
it by law. There are two (2) types of ultra vires acts: consultancy contracts in the specific areas of concern. Therefore,
Vice-Mayor Mr. V has no authority to enter into another contract
1. Ultra vires in the primary sense — An act that is utterly for consultancy services.
beyond the jurisdiction of a municipal corporation;
hence, void. Examples are contracts entered into beyond Q: Typhoon Bangis devastated the Province of Sinagtala.
the express, implied, or inherent powers of the LGU and Roads and bridges were destroyed which impeded the entry
those that do not comply with the substantive requirements of vehicles into the area. This caused food shortage resulting
of law. in massive looting of grocery stores and malls. There was also
a power outage in the area. For these reasons, the governor of
2. Ultra vires in the secondary sense - Irregular exercise the province declared a state of emergency in their locality
of a basic power under the legislative grant in matters through Proclamation No. 1. He also invoked Section 465 of
which are not in themselves jurisdictional and does not the LGC which vests on the provincial governor the power to
preclude ratification or the application of the doctrine of carry out emergency measures during man-made and natural
estoppel in the interest of equity and essential justice. disasters and calamities, and to call upon the appropriate
Examples are contracts entered into by the improper national law enforcement agencies to suppress disorder and
board, officer, or agent and those that do not comply lawless violence. In the same proclamation, the governor
with the formal requirements of written contracts.'' called upon the members of the Philippine National Police,
with the assistance of the Armed Forces of the Philippines, to

1371 G.R. No. 187869, 13 September 2017.

1372 Land Bank of the Philippines v. Cacayuran, G.R. No. 191667, 17 April 2013. 1373 G.R. No. 182069, 03 July 2012.
 600 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 601
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set up checkpoints and chokepoints, conduct general searches 4. When a member of a city or municipal police force
and seizures including arrests, and other actions necessary refuses or fails to render aid or protection to any person
to ensure public safety. Was the action of the provincial in case of danger to life or property, such peace officer
governor proper?174 shall be primarily liable for damages, and the city or
municipality shall be subsidiarily responsible therefor.
A: The action of the provincial governor was not valid. Under
The civil action herein recognized shall be independent
Section 23, Article VI and Section 1, Article VII of the
of any criminal proceedings, and a preponderance of
Constitution, it is only the President who is authorized to
evidence shall suffice to support such action.1379
exercise emergency powers and to call out the Armed Forces of
the Philippines, respectively. The power under Article 465 of the Q: What is the difference between suability and liability?
LGC to call upon national law enforcement agencies to suppress
lawless violence is not applicable. First, the provision refers to A: Where suability of the state is conceded and by which
calamities and disasters and "looting" is not a calamity or liability is ascertained judicially, the state is at liberty to determine
disaster. Second, the Armed Forces of the Philippines is not a for itself whether to satisfy the judgment or not. Execution may
law enforcement agency. Hence, the action of the provincial not issue upon such judgment, because statutes waiving non-
governor was improper.' suability do not authorize the seizure of property to satisfy
judgments recovered from the action. These statutes only convey
Q: What are the legal bases for the liability of LGUs? an implication that the legislature will recognize such judgment
A: LGUs can be held liable under the following: as final and make provisions for its full satisfaction. Thus, where
consent to be sued is given by general or special law, the
1. LGUs and their officials are not exempt from liability implication thereof is limited only to the resultant verdict on the
for death or injury to persons or damage to property.' action before execution of the judgment. m°
2. Provinces, cities, and municipalities shall be liable for Q: What is the doctrine of implied municipal liability?
damages for the death of, or injuries suffered by, any
person by reason of the defective condition of roads, A: The doctrine of implied municipal liability has been said to
streets, bridges, public buildings, and other public works apply to all cases where money or other property of a party is
under their control or supervision.'377 received under such circumstances that the general law, independent
of express contract, implies an obligation upon the municipality
3. The State is responsible in like manner when it acts to do justice with respect to the same. A municipality may
through a special agent." become obligated upon an implied contract to pay the reasonable
value of the benefits accepted or appropriated by it as to which it
has the general power to contract.1381

1374 BAR 2015.

1375 Kulayan v. Tan, G.R. No. 187298, 03 July 2012.
1376 LGC, Sec. 24. 1319 Civil Code, Art. 34.
1377 Civil Code, Art. 2189. 1380 Municipality of Hagonoy, Bulacan v. Dumdum, G.R. No. 168289, 22 March 2010.
1378 Civil Code, Art. 2180. 1381 Province of Cebu v. Intermediate Appellate Court, G.R. No. 72841, 29 January 1987.
 602 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 603
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Q: When are LGUs liable for tort? of Article 107(g) of the Implementing Rules and Regulations
(IRR) of the LGC and that the former mayor was in bad
A: It has already been remarked that municipal corporations are
faith since he knew that the ordinance was defective and thus
suable because their charters grant them the competence to sue
he was not legally authorized to enter into a contract with
and be sued. Nevertheless, they are generally not liable for torts
Company P. Is Municipality C liable to Company P?
committed by them in the discharge of governmental functions
and can only be held answerable only if it can be shown that they A: The Supreme Court in the case of Municipality of Corella v.
were acting in proprietary capacity. In permitting such entities to Philkonstrakn", held that while the contract between Company P
be sued, the State merely gives the claimant the right to show and Municipality C is not valid and binding, the latter is obliged
that the defendant was not acting in its governmental capacity when to pay the former on the basis of the principle of quantum meruit.
the injury was committed or that the case comes under the exceptions
recognized by law. Failing this, the claimant cannot recover.' Under Article 107(g) of the IRR of the LGC, an ordinance that
directs or authorizes the payment of money needs a quorum of all
Q: When are LGUs liable under a contract? the sanggunian members, not only of those sanggunian members
present. In the said case, the sanggunian of Municipality C was
A: Municipal corporations are subject to be sued upon contracts composed of a total of 11 members, the majority vote of six is
within the scope of the charter or legislative powers of the required in order for municipal ordinance to be valid and binding.
corporation and duly made by the proper officers or agents — However, the municipal ordinance only obtained five affirmative
they are liable in the same manner and to the same extent as votes, based on the quorum on the sanggunian members present
private corporations or natural persons.1383 Conversely, an LGU at that time, which was eight members. As such, the ordinance
is not liable for unenforceable contracts entered into by it if it has was not valid for its failure to attain the required number of votes
no power, or if it is beyond the scope of its powers to enter, or required under the IRR of the LGC. Despite such invalidity
prohibited by its charter. which in turn rendered the contract between the municipality and
Company P, invalid, the latter is still entitled to receive payment
Q: In 2009, Municipality C conducted a public bidding for
for the services it rendered for Municipality C. The municipality
the rehabilitation and improvement of its municipal waterworks cannot be unjustly enriched and allowed to retain the benefits of the
system project with Company P emerging as the winning services rendered by Company P without properly paying for it.
bidder. As of December 2009, Company P accomplished
more than 50% of the work and expended P8 million on the 2. Local Elective and Appointive Officials
project. Company P demanded payment, however, Municipality
C, through Mayor T, refused to pay and denied liability Q: Who are Local Elective Officials?
questioning the validity of the contract averring that the
former mayor had no authority to enter into such contract A: The following are the local elective officials per LGU:
during his term. Municipality C averred that the contract is
not binding because the Municipal Ordinance was in violation

1382 Jayme v. Apostol, G.R. No. 163609, 27 November 2008.

1383 Mendoza v. De Leon, G.R. No. L-9596, 11 February 1916. 1384 G.R. No. 218663, 28 February 2022.
604 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 605
ON POLITICAL LAW

LGU Officials I Municipality • Mayor

• Vice-Mayor
Province • Governor
• Regular Sanggunian Bayan Members
• Vice-Governor
• President of municipal Liga ng mga Barangay
• Regular Sanggunian Panglalawigan Members
• President of the municipal Sanggunian
• President of provincial chapter of Liga ng Kabataan federation
mga barangay
• One (1) from the women sector
• President of the provincial Sanggunian
Kabataan Federation • One (1) from the agricultural or industrial sector

• President of the provincial federation of • One (1) from the other sectors (urban poor,
Sangunian members indigenous peoples, persons with disabilities)

• One (1) from the women sector

Barangay • Punong Barangay
• One (1) from the agricultural or industrial sector
• Seven (7) regular Sanggunian Barangay
• One (1) from the other sectors (urban poor, Members
indigenous peoples, persons with disabilities)
• Sanggunian Kabataan Chairperson

City • City Mayor

Q: Who are appointed local officials common to all municipalities,
• Vice-Mayor
cities, and provinces?
• Regular Sanggunian Panlungsod Members
A: The following are appointed local officials common to all
• President of the city Liga ng mga Barangay municipalities, cities, and provinces:
• President of the city Sanggunian Kabataan • Sanggunian Secretary • Administrator
federation
• Treasurer (and Assistant) • Agriculturist
• One (1) from the women sector
• Assessor (and Assistant) • Social Welfare and
• One (1) from the agricultural or industrial sector Development Officer
• Accountant
• One (1) from the other sectors (urban poor, • Environment and Natural
indigenous peoples, persons with disabilities) • Budget Officer Resources Officer
• Planning and
 606 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 607
ON POLITICAL LAW

Development • Architect Q: What are the qualifications for local elective officials?
Coordinator
• Information Officer A: Local executive officials must have the following qualifications:
• Engineer
• Cooperatives Officer 1. Must be a citizen of the Philippines
• Health Officer
• Population Officer 2. A registered voter in the barangay, municipality, city or
• Civil Registrar province, or the district where he intends to be elected
• Veterinarian
• Legal Officer 3. A resident therein for at least one year immediately
• General Services Officer preceding the day of the election
4. Able to read and write Filipino or any other local
Q: Who has disciplining authority over the officials and
language or dialect.
employees of the Sanggunian Panlalawigan?
A: Section 466 of the LGC vests on the Vice-Governor the 5. Meets the following age requirements:
power to appoint all officials and employees of the Sanggunian a. Candidates for the position of governor, vice-governor,
Panlalawigan, except those whose manner of appointment is member of the sangguniang panlalawigan, or mayor,
specifically provided in the LGC, and subject to civil service vice-mayor, or member of the sangguniang panlungsod
law, rules and regulations. The authority of the Vice-Governor to of highly urbanized cities must be at least 23 years
appoint the officials and employees of the Sanggunian of age on election day.
Panlalawigan is anchored on the fact that the salaries of these
employees are derived from the appropriation specifically for the b. Candidates for the position of mayor or vice-mayor
said local legislative body. Indeed, the budget source of their of independent component cities, component cities,
salaries is what sets the employees and officials of the or municipalities must be at least 21 years of age on
Sanggunian Panlalawigan apart from the other employees and election day.
officials of the province. Accordingly, the appointing power of the
c. Candidates for the position of member of the
Vice-Governor is limited to those employees of the Sanggunian
sangguniang panlungsod or sangguniang bayan must
Panlalawigan, as well as those of the Office of the Vice-
be at least 18 years of age on election day.
Governor, whose salaries are paid out of the funds appropriated
for the Sanggunian Panlalawigan. As a corollary, if the salary of d. Candidates for the position of punong barangay or
an employee or official is charged against the provincial funds, member of the sangguniang barangay must be at
even if this employee reports to the Vice-Governor or is assigned least 18 years of age on election day.
to his office, the Governor retains the authority to appoint the
said employee pursuant to Section 465(b)(v) of the LGC.1385 e. Candidates for Sangguniang Kabataan must be at
least 18 years but not more than 24 years of age on
election day.

Officials of the Sangguniang Kabataan must not have been

1385 Atienza v. Villarosa, G.R. No. 161081, 10 May 2005.
convicted by final judgment of any crime involving moral
 608 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 609
ON POLITICAL LAW

turpitude and must not be related within the second civil degree A: Yes, G can continue to serve as a member of the Sanggunian
of consanguinity or affinity to any incumbent elected national Bayan beyond 30 June 2022 in a hold-over capacity. The rule is
official or to any incumbent elected regional, provincial, city, settled that unless "holding over be expressly or impliedly prohibited,
municipal, or barangay official in the locality where he or she the incumbent may continue to hold over until someone else is
seeks to be elected. elected and qualified to assume the office." This rule is demanded
by the most obvious must requirements of public policy, for
Q: What are disqualified from running for any elective local
without it there must frequently be cases where, from a failure to
position?
elect or a refusal or neglect to qualify, the office would be vacant
A: The following persons are disqualified from running for any and the public service entirely suspended." Otherwise stated, the
elective local position: purpose is to prevent the hiatus in the government pending the
time when the successor may be chosen and inducted into office.
1. Those sentenced by final judgment for an offense involving Section 494 of the LGC could not have been intended to allow a
moral turpitude or for an offense punishable by one (1) gap in the representation of the barangays in the sanggunian.'
year or more of imprisonment, within two (2) years after
serving sentence; 3. Rules of Succession
2. Those removed from office as a result of an Q: What are the types of vacancies?
administrative case;
A: There are two types of vacancies namely:
3. Those convicted by final judgment for violating the oath
of allegiance to the Republic; 1. Permanent vacancy - arises when an elective local official
fills a higher vacant office, refuses to assume office, fails
4. Those with dual citizenship; to qualify, dies, is removed from office, voluntarily resigns,
or is otherwise permanently incapacitated to discharge
5. Fugitives from justice in criminal or nonpolitical cases
the functions of his office.
here or abroad;
2. Temporary vacancy - arises when the governor, city, or
6. Permanent residents in a foreign country or those who
municipal mayor, or punong barangay is temporarily
have acquired the right to reside abroad and continue to
incapacitated to perform his duties for physical or legal
avail of the same right after the effectivity of the LGC; and
reasons such as, but not limited to, leave of absence,
7. The insane or feeble-minded. travel abroad, and suspension from office.
Note that the ouster of a de facto officer cannot create a permanent
Q: G is the incumbent president of the municipal Liga ng
mga Barangay and was appointed as an ex-officio member of vacancy. There is no vacancy to speak of as the rightful winner
the Sanggunian Bayan of Municipality S pursuant to Section in the election has the legal right to assume office.1387
494 of the LGC. Can G continue to serve as a member of the
Sanggunian Bayan beyond 30 June 2022, the date when the
term of office of the regular/elective members of the Sanggunian
Bayan of S expired? 1386 Galarosa v. Valencia, G.R. No. 109455, 11 November 1993.
1381 Jalosjos v. COMELEC, G.R. No. 193314, 25 June 2013.
 610 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 611
ON POLITICAL LAW

Q: What are the rules as regards permanent vacancy in the Panlungsod of highly urbanized cities and independent
office of the Governor, Vice-Governor, Mayor, and Vice-Mayor? component cities;
A: The following rules shall govern: 2. The governor, in the case of the Sanggunian Panlungsod
of component cities and the Sanggunian Bayan;
1. If a permanent vacancy occurs in the office of the governor
or mayor, the vice-governor or vice-mayor concerned 3. The city or municipal mayor, in the case of Sanggunian
shall become the governor or mayor. Barangay, upon recommendation of the Sanggunian
Barangay concerned.
2. If a permanent vacancy occurs in the offices of the
governor, vice-governor, mayor, or vice-mayor, the highest Except for the Sanggunian Barangay, only the nominee of the
ranking sanggunian member or, in case of his permanent political party under which the sanggunian member concerned
inability, the second highest ranking sanggunian member, had been elected and whose elevation to the position next higher
shall become the governor, vice-governor, mayor or in rank created the last vacancy in the sanggunian shall be
vice-mayor, as the case may be. Subsequent vacancies in appointed in the manner hereinabove provided. The appointee
the said office shall be filled automatically by the other shall come from the same political party as that of the sanggunian
sanggunian members according to their ranking as member who caused the vacancy and shall serve the unexpired
defined herein. term of the vacant office. In the appointment herein mentioned, a
nomination and a certificate of membership of the appointee
3. If a permanent vacancy occurs in the office of the punong
from the highest official of the political party concerned are
barangay, the highest ranking sanggunian barangay
conditions sine qua non, and any appointment without such
member or, in case of his permanent inability, the second
nomination and certification shall be null and void ab initio and
highest ranking sanggunian member, shall become the
shall be a ground for administrative action against the official
punong barangay.
responsible therefore.
4. A tie between or among the highest ranking sanggunian
In case the permanent vacancy is caused by a sanggunian member
members shall be resolved by the drawing of lots.
who does not belong to any political party, the local chief
5. The successors as defined herein shall serve only the executive shall, upon the recommendation of the sanggunian
unexpired terms of their predecessors. concerned, appoint a qualified person to fill the vacancy.

Q: What are the rules as regards permanent vacancy in the In case of vacancy in the representation of the youth and the
sanggunian? barangay in the sanggunian, said vacancy shall be filled
automatically by the official next in rank of the organization
A: Permanent vacancies in the sanggunian where automatic concerned.
succession provided above does not apply shall be filled by
appointment in the following manner: The Supreme Court in Navarro v. CA' clarified that the `last
vacancy' in the sanggunian refers to that created by the elevation
I. The President, through the Executive Secretary, in the
case of the Sanggunian Panlalawigan and the Sanggunian
1388 G.R. No. 141307, 28 March 2001,
 612 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 613
ON POLITICAL LAW

of the member formerly occupying the next higher in rank which Q: Abdul ran and won in the May 2001, 2004, and 2007
in turn also had become vacant by any of the causes already elections for Vice-Governor of Tawi-Tawi. After being proclaimed
enumerated. The term "last vacancy" is thus used in Section Vice-Governor in the 2004 elections, his opponent, Khalil,
45(b) to differentiate it from the other vacancy previously filed an election protest before the Commission on Election.
created. In the said case, the vacancy occurred in the sanggunian Ruling with finality on the protest, the COMELEC declared
should be filled up with someone who should belong to the Khalil as the duly elected Vice-Governor though the decision
political party of the highest ranked councilor who was elevated was promulgated only in 2007, when Abdul had fully served
to the position of Vice-Mayor. his 2004-2007 term and was in fact already on his 2007-2010
term as Vice Governor. Abdul now consults you if he can still
Q: On 08 August 2008 the Governor of Bohol died and Vice- run for Vice-Governor of Tawi-Tawi in the forthcoming May
Governor Cesar succeeded him by operation of law. Accordingly, 2010 election on the premise that he could not be considered
Benito, the highest-ranking member of the Sanggunian as having served as Vice-Governor from 2004-2007 because
Panlalawigan was elevated to the position of Vice-Governor. he was not duly elected to the post, as he assumed office
By the elevation of Benito to the office of Vice-Governor, a merely as a presumptive winner and that presumption was
vacancy in the Sanggunian Panlalawigan was created. How later overturned when COMELEC decided with finality that he
should the vacancy be filled?1389 had lost in the May 2004 elections. What will be your advice?"9°
A: The vacancy in the Sanggunian Panlalawigan shall be filled A: I will advise Abdul to no longer seek re-election for Vice-
by the appointment by the President through the Executive Governor since he has already served full three terms. In the case
Secretary, of the nominee of the political party to which the of Ong v. Alegre:391 the Supreme Court explained that the
decedent belongs, pursuant to Section 45 of the LGC. proclamation by the board of canvassers as the duly elected
Q: Municipality BB was converted into a component city. official coupled by the assumption of office and the continuous
Because of this, a vacancy arose in the Sanggunian Panlungsod. exercise of the functions thereof from start to finish of the term,
How should the vacancy be filled? should legally be taken as service for a full term in contemplation of
the three-term rule.
A: The vacancy shall be filled by the appointment by the
governor pursuant to Section 45(a) of the LGC. However, the Q: Suppose A, a municipal mayor, went on a sick leave to
LGC does not provide who shall nominate the appointee under undergo medical treatment for a period of four (4) months.
such scenario since the vacancy was only caused by the During that time will B, the municipal vice-mayor, be
conversion of BB into a component city. The author submits that performing executive functions? Why? Will B at the same
Section 45(c) may be used for guidance in this scenario given time be also performing legislative functions as presiding
1392
that the vacancy was not caused by a person belonging to a officer of the Sanggunian Bayan?
political party. As such, the Sanggunian Panlungsod of BB should
recommend the appointee to the governor.

139° BAR 2008.

1391 G.R. Nos. 163295 & 163354, 23 January 2006.
1389 BAR 2008. 1392 BAR 2002.
 614 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 615
ON POLITICAL LAW

A: Considering that A is temporarily incapacitated to perform Sanggunian Panlalawigan, his appointment by the governor is
his duties as municipal mayor, it shall be B, the municipal vice- not valid. On the other hand, since B was not appointed by the
mayor who shall automatically exercise the powers and perform governor but by the municipal mayor, his appointment is also
the duties and functions of the local chief executive pursuant to not valid.
Section 49(a) of the LGC.
4. Term Limitations and Recall
On the other hand, vice-mayor B, once he is acting as municipal
mayor, cannot continue as presiding officer of the Sanggunian Q: What is the difference between term of office and tenure
Bayan. Applying the pronouncement of the Supreme Court in of office?
Gamboa v. Aguirre, 1393 the vice-mayor is deprived of the power
to preside over the sanggunian as he is not a member thereof. A: A term of office is the time during which the officer may
Hence, being the acting Mayor, the vice-mayor cannot continue claim to hold the office as a right. It is a fixed and definite period
to simultaneously exercise the duties of the latter office since the of time to hold office, perform its functions and enjoy its
nature and duties of the municipal mayor call for a full-time privileges and emoluments until the expiration of said period. On
occupant to discharge them. The creation of a temporary vacancy the other hand, tenure of office is the period during which the
in the office of the mayor creates a corresponding temporary incumbent actually holds office.'"5
vacancy in the office of the vice-mayor whenever the latter acts
Q: What are the rules on term limits for local elective officials?
as mayor by virtue of such temporary vacancy. The continuity of
the acting mayor's powers as presiding officer of the sanggunian A: Term limit refers to the number of terms of office the same
is suspended so long as he is in such capacity. person may assume within his lifetime or any other limitation on
a person's eligibility to assume office with respect to time or
Q: A vacancy occurred in the Sanggunian Bayan of a incumbency. The following are the rules on term limit of local
municipality when X, a member, died. X did not belong to any elective officials:
political party. To fill up the vacancy, the provincial governor
appointed A upon the recommendation of the Sanggunian 1. The three-term limit will not apply in cases where an
Panlalawigan. On the other hand, for the same vacancy, the officer takes possession of an office because of succession
396
municipal mayor appointed B upon the recommendation of the because he is not considered to have fully served his term.'
Sanggunian Bayan. Which of these appointments is valid?'
2. In case of winning a recall election, an elective official
A: Neither of the appointments is valid. Under Section 45 of the who has served for three (3) consecutive terms and who
LGC, in case of permanent vacancy is caused by a sanggunian did not seek the elective position for what could be his
member who does not belong to any political party, the governor fourth term, but later on won in a recall election, had an
shall, upon recommendation of the Sanggunian Bayan, shall interruption in the continuity of the official's service for
appoint a qualified person to fill the vacancy. Since Since A was he had in the interim, been a private citizen.' 397
not recommended by the Sangguniang Bayan but by the

1395 Nueno v. Angeles, G.R. No. L-89, 01 February 1946.

1393 G.R. No. 134213, 20 July 1999. 1396 Borja v. COMELEC, G.R. No. 133495, 03 September 1998.
I394 BAR 2002. 1397 Socrates v. COMELEC, G.R. No. 154512, 12 November 2002.
616 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 617
ON POLITICAL LAW

3. In case of abolition of office due to the conversion of a Q: The Province of Amaya is one of the smallest provinces
municipality to a city does not by itself work to interrupt in the Philippines with only one legislative district composed
the incumbent official's continuity of service.1398 of four municipalities: Uno, Dos, Tres and Cuatro. Andres, a
resident and registered voter of Cuatro municipality, ran
4. When a candidate is proclaimed as a winner for an
and was elected as member of Sanggunian Panlalawigan (SP)
elective position and assumes office, his term is
of Amaya in the 2010 and 2013 local elections. While Andres
interrupted when he loses in an election protest and is
was serving his second term as SP member, a law was
ousted from office, thus enabling him from serving what enacted re-apportioning the four towns of Amaya into two
would otherwise be the unexpired portion of his term of legislative districts: Uno and Dos comprising the First District,
office had the protest been dismissed."'
and Tres and Cuatro comprising the Second District. In the
5. When an official is defeated in an election protest but 2016 local elections, Andres ran and was elected as member
said decision becomes final after said official had served of the SP of Amaya representing Second district. Andres now
the full term of office, his loss in the election contest seeks your legal advice regarding his intention to run as a
does not constitute an interruption since he has managed member of the SP of Amaya for the Second District in the
to serve the term from start to finish. His full service, next local election in 2019. What will you advise Andres?"°2
despite the defeat, should be counted in the application of
A: I would advise Andres not to run for SP member, because
term limits because the nullification of this proclamation doing so violates the limitation of three consecutive terms upon
came after the expiration of the term.' 403
local elective officials. In the cases of Latasa v. COMELEC'
and Naval v. COMELEC, 1404 the Supreme Court ruled that the
Note that preventive suspension is not a term-interrupting event
as the elective officer's continued stay and entitlement to the three-term limit applies notwithstanding any reapportionment,
office remain unaffected during the period of suspension, renaming, or reclassification of any local government unit. The
although he is barred from exercising the functions of his office clear intent of the framers of the Constitution was to limit the
during such period.1' term to three consecutive elections to the same position.

Q: What is the three-term limit rule? Q: Atty. G ran for Governor of the Province of Pampanga,
while his close friend, Atty. M, ran for Mayor of the Municipality
A: The rule provides that an elective local official cannot seek of Guagua, Pampanga. They both won convincingly. Eventually,
immediate reelection for a fourth term. The prohibited election the losing candidates timely filed election protests. The losing
refers to the next regular election for the same office following gubernatorial candidate, Mr. A, filed his protest before the
the end of the third consecutive term and, hence, any subsequent Regional Trial Court of Pampanga (RTC), whereas the
election, like recall election, is no longer covered by the prohibition. losing mayoralty candidate, Mr. B, filed his protest before
the Municipal Trial Court of Guagua, Pampanga (MTC).

[398 Latasa v. COMELEC, G.R. No. 154829, 10 December 2003.

[399 Dizon v. COMELEC, G.R. No. 182088, 30 January 2009. l'i°2 BAR 2018.
I'm° Ong v. COMELEC, G.R. No. 163295, 23 January 2006. [403 G.R. No. 154289, 10 December 2003.
1401 Aldovino v. COMELEC. G.R. No. 184836, 23 December 2009. 1404 G.R. No. 207851, 08 July 2014.
618 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 619
ON POLITICAL LAW

What are the term limits for the positions of Atty. G and result of succession by operation of law rather than election,
Atty. m?1405 would therefore be to violate this principle.
A: The term limit for the positions of Atty. G and Atty. M is Q: What is a recall election?
three (3) years for each term, with a maximum of three (3) terms
as provided under Section 43(a) of the LGC. A: Recall is a mode of removal of a public officer by the people
before the end of his term of office.14°8 The elective local official
Q: In the May 1992 elections, Manuel Manalo and Segundo sought to be recalled shall not be allowed to resign while the
Parate were elected as Mayor and Vice-Mayor, respectively. recall process is in progress.
Upon the death of Manalo as incumbent municipal mayor,
Vice-Mayor Parate succeeded as mayor and served the Any elective provincial, city, municipal, or barangay official may
remaining portion of the term of office. Segundo Parate ran be the subject of recall on the ground of loss of confidence.14°9
in the 1995 and 1998 elections as mayor and fully served each No recall election shall take place within one (1) year from the
term. In the May 2001 election, Segundo Parate filed his date of the official's assumption to office or one (1) year
certificate of candidacy for the same position of mayor, but immediately preceding a regular local election.
his rival mayoralty candidate sought his disqualification The recall process shall be initiated by a petition of a registered
alleging violation of the three-term limited for local effective voter supported by:
officials provided for in the Constitution and in the LGC.
Decide whether the disqualification case will prosper or not.1406 Voting Population Percentage of Registered Voters
Required
A: The disqualification case will not prosper. As held in the
case of Borja v. COMLEC,14°7 the term served must be one "for not more than 20,000 At least 25%
which [the official concerned] was elected." The purpose of this
provision is to prevent a circumvention of the limitation on the At least 20,000 but not At least 20% and in no case shall
number of terms an elective local official may serve. Conversely, more than 75,000 petitioners be less than 5,000
if he is not serving a term for which he was elected because he is At least 75,000 but not At least 15% and in no case shall
simply continuing the service of the official he succeeds, such more than 300,000 petitioners be less than 15,000
official cannot be considered to have fully served the term
notwithstanding his voluntary renunciation of office prior to its more than 300,000 At least 10% and in no case shall
expiration. A fundamental tenet of representative democracy is petitioners be less than 45,000
that the people should be allowed to choose those whom they
please to govern them. To bar the election of a local official
because he has already served three terms, although the first as a

14°5 BAR 2019. 14°8 Garcia v. COMELEC, G.R. No. 111511, 05 October 1993.
1406 BAR 2001. 1409 Elective Sangguniang Kabataan positions are not subject to a recall pursuant to
1407 G.R. No. 133495, 03 September 1998. Sec. 27(d) of Republic Act No. 8189.
620 COMPENDIOUS BAR REVIEWER LOCAL GOVERNMENTS 621
ON POLITICAL LAW

Q: Who can initiate the process of recall? 3. Verification Report — Within twenty (20) days from the
termination of the verification, the COMELEC shall prepare
A: Under Section 69 of the LGC, the power of recall for loss of
and submit a report on the result of the verification;
confidence shall be exercised by the registered voters of an LGU
to which the local elective official subject to such recall belongs. 4. Authentication of Thumbmarks and Signatures —
Within three (3) days from receipt of the confirmation,
Q: What is the effect on officials sought to be recalled? the COMELEC shall schedule the authentication of the
A: Section 71 of the LGC provides that the official or officials signatures appearing in the petition;
sought to be recalled shall automatically be considered as duly 5. Notice of Hearing — Upon receipt of the certification of
registered candidate or candidates to the pertinent positions and, insufficiency or sufficiency as well as the petition and
like other candidates, shall be entitled to be voted upon. Should the signature sheets, the COMELEC shall immediately
the official sought to be recalled receive the highest number of set the petition for hearing within three (3) days from the
votes, confidence in him is thereby affirmed, and he shall receipt of the certification and shall send notices of the
continue in office. date and time of hearing to the initiating petitioner and
the official sought to be recalled. Any aggrieved party
Q: When shall a recall take effect?
may file a verified opposition to the petition not later
A: The recall of an elective local official shall be effective only than five (5) days from receipt of the Notice of Hearing; and
upon the election and proclamation of a successor in the person
6. Setting of Recall Election — If the COMELEC determines
of the candidate receiving the highest number of votes cast
that the petition for recall is valid, it shall set the date of
during the election on recall.
the recall election.
Q: What is the process of recall under Republic Act No. 9244? Q: Governor Diy was serving his third term when he lost his
A: The process of recall shall be effected in accordance with the governorship in a recall election. Who shall succeed Governor
following procedure: Diy in his office as Governor? Can Governor Diy run again
as governor in the next election? Can Governor Diy refuse to
1. Written petition — a petition for recall duly signed by run in the recall election and instead resign from his position
the representatives of the petitioners before the election as governor?'410
registrar or his representatives shall be filed with the
COMELEC in the LGU concerned; A: In accordance with Section 72 of the LGC, the candidate
who received the highest number of votes will succeed Governor
2. Verification of Sufficiency or Insufficiency of the Diy. Further, Governor Diy can run again as governor in the next
Required Number of Signatures — If the petition is election as he did not fully serve his third term, because he lost
accepted, the COMELEC shall within fifteen (15) days
from the acceptance of the petition, verify if the required
number of signatures is sufficient in relation to the
percentage or minimum number of petitioners required;

" I° BAR 2010.

622 COMPENDIOUS BAR REVIEWER
ON POLITICAL LAW

in the recall election. His third term should not be included in

computing the three-term limit.1411 XII. Public International Law
With respect to the recall election, following Section 71 of the Q: What is Public International Law?
LGC, Governor Diy is automatically considered as a duly
registered candidate and, like other candidates, shall be entitled A: Magallona defines Public International Law as "a body of
to be voted upon. He cannot refuse to run in the recall election. principles, norms and processes which regulates the relations of
Further, he is not allowed from resigning while the recall process States and other international persons and governs their conduct
is in progress pursuant to Section 73 of the LGC. affecting the interests of the international community of States as
a whole."1412

Q: How can the State manifest its consent to be bound under

international law?
A: According to Bernas, the consent of States may be expressed
through treaties or incorporations; impliedly adopted in the form
of international customs; and presumed under the general
principles of law.' 413

A. Doctrine of Incorporation and Transformation (1987

CONST., Art. IL Sec. 2; Art. VII, Sec. 21)

Q: Under the Philippine Law, what are the ways that an

international law can form part of the law of the land?
A: Under the 1987 Constitution, international law can become
part of the sphere of domestic law either by transformation or
incorporation.1414

Q: What is the doctrine of incorporation?

A: Under the doctrine of incorporation, rules of international
law automatically form part of the law of the land and no further

"12Merlin M. Magallona, Fundamentals of Public International Law, 1 (2005 ed.).

Joaquin G. Bernas, S.J., Introduction to Public International Law, 4 (2009 ed.).
1413
1414
Pharmaceutical and Health Care Association v. Duque III, G.R. No. 173034, 09
October 2007.

ILonzanida v. Commission on Elections, G.R. No. 135150, 28 July 1999. 623

 624 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 625
ON POLITICAL LAW

legislative action is needed to make such rules applicable in the economists analyzed would be paid by ten generations, drawing
domestic sphere.'" The incorporation method applies when, by widespread ire from the masses. He was never arrested as he
mere constitutional declaration, such as by virtue of the flew out of the country. When the case was dismissed for failure
incorporation clause under Section 2, Article II of the 1987 to prosecute, Ronald attempted to return to the Philippines
Constitution, international law is deemed to have the force and so he could peacefully retire but the President prohibited his
effect of domestic law. return. Ronald argued that he could not be prevented to
return to the Philippines invoking his right to return to one's
Q: What norms of international law may form part of country. The President of the Philippines countered that this
domestic law without domestic legislation? right is enshrined only in the Universal Declaration of
A: Pursuant to Section 2, Article II of the 1987 Constitution, the Humans Rights and not in the Bill of Rights, and hence,
scope of incorporation clause allows generally accepted principles there is a need for a legislation in order for said right to be
of international law to form part of domestic law without need of enjoyed by Ronald. Decide.
further adoption for domestic legislation A: Ronald may validly invoke his right to return to one's
country. In the case of Marcos v. Manglapus, 1417 the Supreme
Q: What is the doctrine of transformation?
Court held that although the right to return to one's country is
A: The transformation method requires that specific international not among the rights specifically guaranteed in the Bill of
law be transformed into a domestic law through a constitutional Rights, which treats only of the liberty of abode and the right to
mechanism such as local legislation before it shall be binding travel, it is our well-considered view that the right to return may
upon the State. be considered as a generally accepted principle of international
law which, pursuant to Sec. 2, Art. II of the 1987 Constitution, is
For instance, treaties become part of the law of the land through part of the law of the land. Therefore, there is no need for a
transformation pursuant to Section 21. Article VII of the separate legislation before a person can enjoy the right to return
Constitution which provides that "no treaty or international to one's country.
agreement shall be valid and effective unless concurred in by at
least two-thirds of all the members of the Senate." Thus, treaties B. Sources of Obligations in International Law (Statute of
or conventional international law must go through a process the International Court of Justice, Art. 38)
prescribed by the Constitution for it to be transformed into municipal
law that can be applied to domestic conflicts.1416 Q: Enumerate the sources of International Law?1418

Q: Ronald, a Filipino citizen, was charged of amassing A: The following are the generally accepted sources of
multi-billion pesos from the National Treasury. This caused International Law:
extreme economic recession as the Philippines had to contract a. International conventions, whether general or particular,
foreign loans to recover thereby plunging it into debt which establishing rules expressly recognized by the contesting
states;

1415 Secretary ofJustice v. Lantion, G.R. No. 139465, 18 January 2000.

1416 Pharmaceutical and Health Care Association v. Duguelll, G.R. No. 173034, 09 1417 Marcos v. Manglapus, G.R. No. 88211, 15 September 1989.
October 2007. 1418 BAR 2012.
 626 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 627
ON POLITICAL LAW

b. International custom, as evidenced of a general practice 3. They embody a reflection of emerging international norms
1422
accepted as law; and standards, or commonly referred to as "soft law.s
c. General principles of law recognized by civilized nations; Here, the present Resolution falls under the first exception.
Article 38(1)(b) of the ICJ Statute identifies international custom as
d. Judicial decisions; and
evidence of a general practice accepted as law, and hence, as a
e. Teachings of the most highly qualified publicists of the valid source of obligation under international law. The Resolution is
various nations."19 concerned about mitigating environmental impairments and
safeguarding the flora and fauna, which may be considered as a
Q: The United Nations General Assembly unanimously passed widespread custom that is already uniformly being observed by a
a Resolution expressing the commitment of its members to lot of States.Therefore, the Resolution can be considered as a
pass a law and related policies that would provide incentives mere formalization of an already established custom or practice
for all citizens of the planet to change their lifestyles so that in international context.
the impending disasters brought about by climate change can
be avoided or mitigated. As the principal legal adviser of the Q: Differentiate between formal and material sources of
Secretary of Foreign Affairs, you are asked this query: Is this international law.
General Assembly Resolution a valid source of State obligation
A: Magallona distinguished between formal and material sources
under international law? Explain briefly.1420
of international law as follows: "formal sources consist of the
A: Yes. Under international law, it is the general rule that methods and procedures by which norms are created, and
United Nations General Assembly's (UNGA) resolutions have material sources are the substantive evidence of the existence of
no binding legal effect upon member-States and are merely norms."`423 He further illustrated the distinction by providing that
recommendatory by nature.1421 However, as an exception, they "a rule, for example, will be considered legally binding as
may acquire binding legal effect when they constitute any of the customary norm or custom on account of the process or method
valid sources of obligation recognized under the Statute of the by which it was created through the formation of general practice
International Court of Justice (ICJ Statute). More specifically, a accepted as law. Hence, custom as a norm-creating process is a
UNGA resolution legally binds the member-States when they formal source of law. Its content in terms of state practice arising
fall under any of the following: from a sense of legal duty is its material source."'
1. They constitute an articulation of a customary international Q: Is there a hierarchy or order of precedence among
norm; the sources?
2. They are a reiteration of existing treaty obligations; or A: No order of precedence or hierarchy is explicitly indicated in
Article 38(1) of the ICJ Statute. Nonetheless, there are guiding
principles on determining such order of preference when it

1919 Statute of the International Court of Justice, hereinafter "ICJ Statute",

Art. 38(1).
'420 BAR 2020/21. "22 Almonte v. People, G,R. No. 252117, 28 July 2020 (Separate Opinion of C.J. Peralta).
1421 Ichong v. Hernandez, G.R. No. L-7995, 31 May 1957;
Linda A. Malone, 1423 Merlin M. Magallona, Fundamentals of Public International Law, 11 (2005 ed.).
International Law, 94 (1998 ed.). 1424 Id.
628 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 629
ON POLITICAL LAW

comes to the application of rules of norms in international law. 1. Treaties in general: Article VII, Section 21 (with
For instance, a conventional rule or treaty norm may be treated concurrence of at least two-thirds of the Senate);
in precedence over a customary law. 1425
2. Foreign loans: Article VII, Section 20 (with prior
Q: What are the principles which may determine the order concurrence of the Monetary Board);
of precedence in the application of rules of norms in
3. Military bases: Article XVIII, Section 25 (that entered
international law?
into with the U.S.; when the Congress requires, majority of
A: The following principles may serve as a guide in determining votes cast by the people in a national referendum); and
the order of precedence in the application of rules of norms in
4. Constitutionality of treaties: Article VIII, Section 4, par.
international law according to Magallona:
2 (concurrence of majority of members of the Supreme
1. "Lex superior derogate inferiori: rules from one source Court who actually took part in the deliberations).
of law prevail over those derived from another source;
Q: Define Jus Cogens."29
2. Lex posterior derogate priori: later rules prevail over the
earlier; and A: A jus cogens norm, otherwise known as a peremptory norm
of general international law, is a norm accepted and recognized
3. Lex specialis derogate generali: particular or special by the international community of States as a whole from which
rules prevail over the general."1426 no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same
Treaties character.14"
Q: What is a treaty?1427 The following are examples provided by Magallona for norms
with jus cogens character:
A: As defined under the Vienna Convention on the Law of
Treaties (VCLT), a treaty is an international agreement concluded 1. The prohibition against the use of force under the UN
between states in written form and governed by international Charter;1431
law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation."1428 2. The law on genocide;

Q: What are the relevant constitutional provisions with 3. The principle of self-determination;
regard to treaties? 4. Crimes against humanity;
A: The following are the constitutional provisions pertinent to 5. Prohibition against slavery and slave trade;
treaties:

1429
1425 Merlin M. Magallona, Fundamentals of Public International Law, 27 (2005 ed.). BAR 1991, 2007, 2008, 2012, 2019.
'4261d., at 29. " 3° VCLT, Art. 53.
1427 BAR 2012. 1431 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.),
1428 Vienna Convention on the Law of the Treaties, hereinafter "VCLT", Art. 2(1)(a). Judgment, ICJ Reports, 14 (1986).
 630 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 631
ON POLITICAL LAW

6. Piracy; and Q: Does generality require that all states adhere to the
practice for it to become customary?
7. Principle of racial non-discrimination.1432
A: No. For a practice to be considered general, a majority of the
Q: In case of conflict between a jus cogens norm and a specially affected interested States must have adhered thereto which
treaty, which prevails? is enough to constitute a very widespread and representative
A: Jus cogens norm prevails. Article 53 of the VCLT provides participation.1436
that a treaty is void if, at the time of its conclusion, it conflicts
Q: How is the requirement of uniformity operationalized?
with a peremptory norm of general international law.
A: North Sea Continental Shelf Cases and Asylum Case instruct
Customary International Law that what is required is only virtual or substantial uniformity, and
not total or absolute. The ICJ in the Case Concerning Military
Q: Define Customary International Law.
and Paramilitary Activities in and against Nicaragua does not
A: Customary International Law is defined as the general and consider that, for a rule to be established as customary, the
consistent practice of states recognized and followed by them corresponding practice must be in absolutely rigorous conformity
from a sense of legal obligation.1433 with the rule.'"

Q: What are the elements of Customary International Law?1434 Q: For a practice to be considered customary, how long
should the duration be?
A: For a norm to attain customary status, two elements must
concur: (1) state practice, the objective element; and (2) opinion A: As a rule, length of time is immaterial in order for a practice
juris sive necessitatis, the subjective element. to ripen into a customary norm but it may be relevant in establishing
the existence of the other two elements of custom.1438 For instance,
State practice or Usus refers to the continuous repetition of the although the passage of only a short period of time is not necessarily,
same or similar kind of acts or norms by the States. It is or of itself, a bar to the formation of a new rule of customary
demonstrated upon the existence of the following elements: (1) law, state practice within the period, no matter how short it might
generality; (2) uniformity and consistency; and (3) duration. be, should have been both extensive and virtually uniform.'
Meanwhile, Opinio Juris Sive Necessitatis (Opinion of Law or
Necessity) requires that the state practice or norm "be carried out Q: Explain the principle of persistent objector.
in such a way, as to be evidence of a belief that this practice is
A: According to Magallona, a new custom may not bind a State
rendered obligatory by the existence of a rule of law requiring
it . ”1435 if at the time such custom is in the process of formation and

1436 North Sea Continental Shelf, Judgment, ICJ Reports, 3 (1969).

1432 Merlin M. Magallona, Fundamentals of Public International Law, 26 (2005 ed.). 1432 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
1433 Bayan Muna v. Romulo, G.R. No. 159618, 01 February 2011. US.), Judgment, ICJ Reports, 14 (1986).
1434 BAR 2008, 2012. 1438 Merlin M. Magallona, Fundamentals of Public International Law, 17-18 (2005 ed.).
1435 Bayan Mona v. Romulo, G.R. No. 159618, 01 February 2011. 1439 North Sea Continental Shelf; Judgment, ICJ Reports, 3 (1969).
 632 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 633
ON POLITICAL LAW

development, the State has continuously objected to it.144° The on the act or declaration the character of a legal undertaking, the
persistent objection must be proved by clear and unequivocal evidence. State being thenceforth legally required to follow a course of
conduct consistent with the act or declaration. An undertaking of
Q: Define Obligation Erga Omnes.
this kind, if given publicly, and with an intent to be bound, even
A: Obligation erga omnes may be defined as: though not made within the context of international negotiations,
is binding.1443
1. An obligation under General International Law that a
State owes in any given case to the international community, Q: President Black of the Republic of Pasensya (RP) had a
in view of its common values and its concern for telephone conversation with President Blue of the People's
compliance, so that a breach of that obligation enables Republic of Conquerors (PRC). In that conversation, both
all States to take action; or leaders agreed that they will both pullout all their vessels,
civilian or otherwise, sea crafts and other ships from the
2. An obligation under a Multilateral treaty that a State hotly disputed Kalmado Shoal area within eight (8) days in
party to the treaty owes in any given case to all the other order to deescalate the situation. After eight days, all RP ships
State parties to the same treaty, in view of their common and vessels have left the area. However, several military and
values and concern for compliance, so that a breach of civilian ships carrying the PRC flag remained in the area and
that obligation enables all these States to take action.1441 began construction of a dock that could provide fuel and
The following are examples of obligations erga omnes: other supplies to vessels passing by.

1. outlawing acts of aggression; a) Assuming that President Black and President Blue both
had full capacity to represent their states and negotiate
2. outlawing acts of genocide; and with each other under their respective systems of government,
and further assuming that both leaders acknowledge the
3. the basic rights of the human person, including protection existence of the conversation, is the verbal agreement via
from slavery and racial discrimination.1442 telephone binding under international law? Explain.""
Q: May a legal obligation arise from a unilateral act or A: Yes. In accordance with customary international law, the
declaration of a State? verbal agreement via telephone is binding between President
A: Yes. The ICJ in the Nuclear Tests Case explained that when Black and President Blue and their respective states. In the Case
it is the intention of the State making the act or declaration that it Concerning Passage Through the Great Belt,1445 an exactly
should become bound according to its terms, that intention confers similar case, Denmark and Finland amicably settled their dispute
— with Finland agreeing to withdraw from the case in exchange
for the return of payment by Denmark — concerning the construction
11° Merlin M. Magallona, Fundamentals of Public International Law, 18 (2005 ed.).
See also, Anglo-Norwegian Fisheries Case, Judgment, ICJ Reports 1951.
1441 Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010;
Barcelona
Traction, Judgment, ICJ Report, 22 (1970); Obligations and Rights Erga Onmes in 1443 Nuclear Tests (Australia v. France), Judgment, ICJ Reports, 253 (1974).
International Law, Resolution of the Institut de Droit International, 2005, Art. 1, 1444BAR 2012.
hereinafter "Obligations and Rights Erga Omnes". 1445 Case Concerning Passage Through the Great Belt (Finland v. Denmark), Provisional
1442
Measures, ICJ Reports, 12 (1991).
634 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 635
ON POLITICAL LAW

of a bridge through a telephone conversation between their laches, estoppel, good faith, equity and res judicata are examples
respective prime ministers. law.'45°
of generally accepted principles of international
b) Assuming the answer to (A) is in affirmative, does that Judicial Decisions and teachings of the most highly qualified
agreement constitute a Treaty under the 1969 Vienna publicists of the various nations
Convention on the Law on Treaties?1446
Q: How does the ICJ treat judicial decisions and teachings
A: No. The verbal agreement via telephone does not constitute a
of the most highly qualified publicists?
valid treaty under the VCLT. Article 2(1)(a) thereof explicitly
requires that for an international agreement concluded between A: Judicial decisions and the teachings of the most highly
States to be considered a treaty under the VCLT, it must be in qualified publicists constitute secondary sources of international
written form, whether embodied in a single instrument or in two law. In resolving disputes submitted to it, the ICJ applies these in
or more related instruments. The VCLT does not apply to a subsidiary manner to determine the applicable rule/s of law.1451
international agreements not in written form.1447 452
Q: Do prior ICJ decisions constitute stare decisis?'
General Principles of Law
A: No, ICJ decisions do not constitute stare decisis. Under
Q: Define General Principles of Law. Article 59 of the ICJ Statute, the decision of the ICJ has no
binding force except between the parties and in respect of that
A: General Principles of Law in essence relate more to the particular case.
principles of municipal law that are common to the world's
major legal systems, which are then applied in the context of Q: How do teachings of the most highly qualified publicists
international law. Hence, these principles may be said not to qualify as a secondary source of international law?
belong to any particular system of law but are evidence instead
of the fundamental unity of legal system.'448 A: In order to qualify as secondary source of international law,
teachings of the most highly qualified publicists such as treatises
Q: Explain the concept of General Principles of Law as and other legal materials must be (1) published, and (2) written
enshrined under Article 38(1) of the ICJ Statute. by a person who is acknowledged as an expert in the field of
international law under which the treatise and other legal
A: General Principles of Law, according to Magallona, are material is made.' 453
"those principles generally recognized and established in
domestic law which are considered extensions of the latter as
applied in international context.i1449 Legal principles such as

145° Poe-Llamanzares v. COMELEC, G.R. Nos. 221697 & 221698-700, 08 March

"46 BAR 2012. 2016 (Dissenting Opinion of J. Carpio).
1447 VCLT, Art. 3. 1451 ICJ Statute, Article 38(1)(d).
1452
"48 Joaquin G. Bernas, S.J., Introduction to Public International Law, 18 (2009 ed.). BAR 2013.
1453
1449 Merlin M. Magallona, Fundamentals of Public International Law, 21 (2005 ed.). Public International Law Bar Reviewer, Ateneo Society of International Law (2022).
 636 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 637
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C. Subjects of International Law 6. The United Nations;

Q: Who are considered subject and object of international law? 7. The Vatican and the Holy See; and
A: According to Magallona, a subject of international law is an 8. Individual, to a certain extent. I458
entity endowed with the legal personality of possessing international
rights and duties and of bringing international claims.1' It is an States
actor in the international legal system and is distinct from an
Q: How is a State regarded as a subject of international law?
object of international law, which pertains to an entity who
indirectly has rights under or is beneficiary of international law A: As a subject of international law, a State has the capacity to
through the subjects.'455 be bearer of rights and duties recognized internationally per
Magallona. The status of the State as an international legal
However, Bernas notes that "not all subjects of international law
person is conferred by customary or general international law.'"
enjoy the same rights and obligations." Although States remain
the predominant actors as they enjoy the fullest personality in Q: When does a new State become subject to international law?
international law, other actors have come to be recognized
because of modern developments in international law.'456 A: A new state becomes subject of international law from the
very moment of its establishment with respect to peremptory
Object of the international law are those indirectly have rights norms (jus cogens) and obligation erga omnes under customary
under or are beneficiaries of international law through subjects international law as discussed by Sarmiento.'' Neither the
of international law.'" express consent of the new State to be bound nor the recognition
by other States is necessary for the new State to be bound by said
Q: Who are considered subjects of international law?
norms and obligations.
A: Nachura lists down the following as the subjects of
However, to enjoy the rights and privileges of States under
international law:
international law, the new State must first be integrated in the
1. States; international community through co-optation, that is, the individual
and collective recognition on the part of the already existing States!'
2. Colonies and dependencies;
Q: What then may be the legal function of recognition of States?
3. Mandates and trust territories;
A: Magallona opined that "while rights and duties of States as
4. Belligerent communities;
subjects of international law exist independently of recognition
5. International administrative bodies; (or non-recognition) [by others], their actual application may be

1454 Merlin M. Magallona, Fundamentals of Public International Law, 33 (2005 ed.). 1458 Antonio Eduardo B. Nachura, Outline Reviewer in Political Law, 23 (2014 ed.).
1455
Joaquin G. Bernas, S.J., Introduction to Public International Law, 71 (2009 ed.). 1459 Merlin M. Magallona, Fundamentals of Public International Law, 34 (2005 ed.).
1456 Id. 1460
Ralph A. Sarmiento, Public International Law: Bar Reviewer, 53 (2016 ed.).
1457 Id. 1461 Id.
 638 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 639
ON POLITICAL LAW

considerably impeded or limited by, for example, the absence of Did the State Secretary err in listing "Jerusalem" as Manachem's
diplomatic relations on account of non-recognition."' place of birth in his passport?

Q: Is there a duty under international law to recognize a State? A: Yes. In the case of Zivotofsky v. Kerry,' the U.S. High
Court held that, although the Constitution does not explicitly
A: No. As explained by Brownlie, recognition, as a public act of address the issue of recognition of foreign nations, the Reception
state, "is an optional and political act and there is no legal duty in Clause in Article II of the Constitution—which states that the
this regard to make an express, public, and political determination President will receive foreign ambassadors—grants the President
of the status of a political entity or to declare readiness to enter the power to recognize foreign states. The President's power is
into diplomatic relations."' assumed to be exclusive, and therefore Congress cannot act in a
manner that contradicts Executive branch policy regarding
Q: Differentiate the concept of recognition of a state from
recognition. The High Court also held that precedent and history
recognition of government under international law.
support the view that the formal recognition power belongs
A: Recognition of a new government differs from the recognition exclusively to the President. Because the Executive branch has
of a new state. Shaw explained that "recognition of a state will maintained a neutral position by not recognizing any nation's
affect its legal personality, whether by creating or acknowledging it, sovereignty over Jerusalem, the State Secretary's act in question
while recognition of a government affects the status of the unconstitutionally infringes on the President's recognition power.
administrative authority, not the state. As a rule, a change in
government does not affect the identity of the State itself, especially Q: What are the elements of statehood?
when the status of the latter as a State has already been recognized A: Article I of the 1933 Montevideo Convention on the Rights
by other States."1464 and Duties of States provides that "[t]he state as a person of
international law should possess the following qualifications: (a)
Q: Manachem was born in Jerusalem to parents who are
a permanent population; (b) a defined territory; (c) government;
both United States citizens. Manachem's parents requested
and (d) capacity to enter into relations with the other states."
that the U.S. State Department record his place of birth on
These elements are also reiterated in the case of Province of
his passport as "Israel." However, the State Department
North Cotabato v. Government of the Republic of the Philippines
refused and instead issued Manachem a passport that listed
Peace Panel on Ancestral Domain.' 466
"Jerusalem" as his place of birth, prompting Manachem's
parents to sue the Secretary of State. Manachem's parents Non-State Entities
argued that the U.S. President does not recognize Jerusalem's
sovereignty, and the Secretary of State, in issuing a passport Q: Who are considered non-state actors in international law?
that listed Jerusalem as Manachem's place of birth, contravenes
the prerogative of the U.S. President in recognizing states. A: Shaw opined that "groups, entities and individuals not
constituting states are often referred to as non-state actors, a term
which brings together a large and increasing collection of those

'4" Id., at 40.

1463 Ian Brownlie, Principles of Public International Law, 94-95 (1979 ed.). 1465 Zivotofsky v. Kerry, 576 U.S. 1, 08 June 2015.
14" Malcolm N. Shaw, International Law, 336-338 (8th ed., 2017). 1466 G.R. Nos. 183591, 183752, 183893, 183951 & 183962, 14 October 2008.
 640 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 641
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affecting or affected by international law in a manner which Q: How are international organizations regarded as subjects
perhaps does not fully recognise the many differences between of international law?
such persons."1467
A: International organizations are considered subjects of
Q: What is National Liberation Movement? international law provided their international legal personality is
established by their constituent instrument, typically in the form
A: They are defined as people fighting against colonial denomination, of a treaty between two or more states.1471 Thus, their status is
alien occupation and racist regimes in the exercise of their right determined by agreement and not by general or customary
of self-determination, as enshrined in the Charter of the United international law.1472 In the Reparations Case, the ICJ held that
Nations.1468 international organizations have international personality if the
charter itself specifically endows them such, or if it can be
International Organizations
implied from the functions of the organization."'
Q: Define International Organizations. They are organized mainly as a means for conducting general
A: According to Gardiner, international organizations are legal international business in which the member states have an
entities created by a group of states functioning under interest. The United Nations, for instance, is an international
peace.l4'4
international law to achieve certain purposes defined in their organization dedicated to the propagation of world
constitutions.1469
Q: Define international administrative bodies.
International Organizations can be characterized as follows:
A: International administrative bodies are certain bodies created
1. Established by a treaty; by agreement among states which may be vested with international
personality when the following two conditions concur, to wit: (1)
2. Composed of members that are States of international that their purposes are mainly non-political; and (2) that they are
organizations; autonomous, i.e., not subject to the control of any state. Examples
3. Regulated by international law; and include the World Health Organization and International Labor
Organization.' 475
4. Endowed with a legal personality and thus generally can
engage in contractual relations and can sue and be sued
in national courts subject to certain immunities.147°

1471
International Catholic Migration Commission v. Calleja, G.R. No. 85750, 89331, 28
September 1990.
1472 Merlin M. Magallona, Fundamentals of Public International Law, 36 (2005 ed.).
14° Malcolm N. Shaw, International Law, 156 (8th ed., 2017). 1473 Reparations for injuries suffered in the service of the United Nations (Advisory
1468 Additional Protocol I to the Geneva Conventions, hereinafter "Additional Protocol I". Opinion), ICJ Reports 1949, p. 174.
1469 Richard K. Gardiner, International Law. 206 (2003 ed.) 14 4 International Catholic Migration Commission v. Calleja, G.R. No. 85750, 89331, 28
1470
Ralph A. Sarmiento, Public International Law: Bar Reviewer 29 (2016 ed.) citing September 1990.
Bernadotte Case, Advisory Opinion on Reparation for Injuries Suffered in the 147 Southeast .4sian Fisheries Development Center v. .4costa, G.R. Nos. 97468-70
Service of United Nations, I.C. J. 174, 11 April 1949. (Resolution), 02 September 1993.
 642 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 643
ON POLITICAL LAW

Individuals and Corporations Parties which shall have accepted its jurisdiction, shall
have jurisdiction to try persons charged with genocide or
Q: Define the status of individuals in the international arena. any of the other acts enumerated in Article III thereof.
A: Two views define the status of individuals in the international 3. In the Claims Settlement Declaration of 1981 between
arena: the United States and Iran, individuals have been given
1. Under the traditional view, "individuals are considered direct access to the Iran-US Claims Tribunal for the settlement
objects or at best `beneficiaries' of international law and of their claims against Iran or the United States.' 479
they are exclusively under the control of States."'
Q: Explain the status of corporations under international law.
2. Under the modern view, "individuals are now considered
A: International companies or corporations, which include
subjects of international law, not in accordance with
multinational public enterprises or transnational corporations, according
general or customary international law, but on the basis
to Shaw "are characterized in general by an international
of agreement by states."1477 "With the greater global
agreement providing for co-operation between governmental and
awareness of human rights, individuals have now come
private enterprises. The personality question will depend upon
to be recognized as possessing albeit limited rights and
the differences between municipal and international personality.
obligations in international law."1478
If the entity is given a range of powers and is distanced sufficiently
Q: Provide instances when an individual has been regarded from municipal law, an international person may be involved,
as subject of international law. but it will require careful consideration of the circumstances."'

A: Magallona provides the instances when individuals have been D. Diplomatic and Consular Law (Vienna Convention on
regarded as subject of international law. Diplomatic Relations; Vienna Convention on Consular
Relations)
1. Under Article 187 of the United Nations Convention on
the Law of the Sea (UNCLOS), State parties, or other Q: Explain the distinction between diplomatic relations and
natural and juridical persons as parties to a contract diplomatic missions.
pertaining to exploitation and exploration of the Area
concerned may settle their disputes arising from such A: As may be implied from Article 2 of the Vienna Convention
contract before the Seabed Disputes Chamber. on Diplomatic Relations (VCDR), which states that "[t]he
establishment of diplomatic relations between States, and of
2. Under Article VI of the Genocide Convention, a competent permanent diplomatic missions, takes place by mutual consent",
tribunal of a State in the territory of which a prohibited diplomatic missions may be established on an isolated basis
act was committed, or an international penal tribunal as without necessarily establishing diplomatic relations between
may have jurisdiction with respect to those Contracting States. This is because according to Magallona, the consent of a
State in establishing diplomatic mission is independent from its

14M
Joaquin G. Bemas, S.J., Introduction to Public International Law, 101 (2009 ed.).
"77 Merlin M. Magallona, Fundamentals of Public International Law, 36 (2005 ed.). 1479 Merlin M. Magallona, Fundamentals of Public International Law, 37 (2005 ed.).
1478
Joaquin G. Bemas, S.J., Introduction to Public International Law, 101 (2009 ed.). 1480 Malcolm N. Shaw, International Law, 196-197 (8th ed., 2017).
 644 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 645
ON POLITICAL LAW

consent to establish diplomatic relations.1481 It then follows that Q: Is the existence of a diplomatic or consular relation a
the establishment of one does not automatically establish the other. precondition to the establishment of a special mission?
Q: Enumerate the functions of a diplomatic mission. A: No. Article 7 of the CSM provides that the existence of
diplomatic or consular relations is not necessary for the sending
A: Under Article 3(1) of the VCDR, the functions of a diplomatic
or reception of a special mission.
mission consist, inter alia, in:
1. Representing the sending State in the receiving State; Q: What is the underlying purpose or theoretical basis of
diplomatic privileges and immunities?
2. Protecting in the receiving State the interests of the
sending State and of its nationals, within the limits A: As expressed in the Preamble of the VCDR, the purpose of
permitted by international law; such privileges and immunities is not to benefit individuals but
to ensure the efficient performance of the functions of diplomatic
3. Negotiating with the Government of the receiving State; missions as representing States.
4. Ascertaining by all lawful means conditions and developments Q: Define Diplomatic Immunity.
in the receiving State, and reporting thereon to the
Government of the sending State; and A: Diplomatic immunity has been defined by Nachura as part of
customary international law which grants immunity to diplomatic
5. Promoting friendly relations between the sending State representatives in order to uphold their dignity as representatives
and the receiving State, and developing their economic, of their respective States and to allow them free and unhampered
cultural and scientific relations. exercise of their functions.'4"
Q: What is a special mission? Q: Who are entitled to diplomatic immunity?
A: Article 1(a) of the Convention on Special Missions (CSM) A: The diplomatic representatives who enjoy immunities in
defines special mission as "a temporary mission, representing the varying degrees are enumerated in Article 1 of VCDR. They are:
State, which is sent by one State to another State with the
consent of the latter for the purpose of dealing with it on specific 1. The "head of the mission" is the person charged by the
questions or of performing in relation to it a specific task". The sending State with the duty of acting in that capacity;
functions of a special mission shall be determined by the mutual
consent of the sending and the receiving State.14' 2. The "members of the mission" are the head of the mission
and the members of the staff of the mission;
3. The "members of the staff of the mission" are the
members of the diplomatic staff, of the administrative
and technical staff and of the service staff of the mission;

1481 Merlin M. Magallona, Fundamentals of Public International Law, 91 (2005 ed.).

1482 Convention on Special Missions, hereinafter "CSM", Art. 3. '4" Antonio Eduardo B. Nachura, Outline Reviewer in Political Law, 669 (2014 ed.).
 646 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 647
ON POLITICAL LAW

4. The "members of the diplomatic staff' are the members Q: What is the rule on immunity of diplomatic agents from
of the staff of the mission having diplomatic rank; criminal jurisdiction?
5. A "diplomatic agent" is the head of the mission or a A: Article 31(1) of the VCDR states that a diplomatic agent
member of the diplomatic staff of the mission; shall enjoy immunity from the criminal jurisdiction of the
receiving State. He shall not be liable to any form of arrest or
6. The "members of the administrative and technical staff'
detention. '486 However, this does not exempt the diplomatic
are the members of the staff of the mission employed in
the administrative and technical service of the mission; agent from the jurisdiction of the sending State.

7. The "members of the service staff' are the members of the As a recourse, the receiving State may at any time and without
having to explain its decision, notify the sending State that the
staff of the mission in the domestic service of the mission;
head of the mission or any member of the diplomatic staff of the
8. A "private servant" is a person who is in the domestic mission is persona non grata or that any other member of the
service of a member of the mission and who is not an staff of the mission is not acceptable. In any such case, the
employee of the sending State; sending State shall, as appropriate, either recall the person concerned
or terminate his functions with the mission. If the sending State
9. The "premises of the mission" are the buildings or parts refuses or fails to do so, the receiving State may refuse to
of buildings and the land ancillary thereto, irrespective 487
recognize the person concerned as a member of the mission.'
of ownership, used for the purposes of the mission
including the residence of the head of the mission. Q: Bartolome is the Deputy Chief of Mission of the Embassy
of Argentina. One week before the expiry date of the
Q: What is the rule on the sending State's authority to appointment of Bartolome in the Mission, he went on a
appoint members of the staff of the diplomatic mission?
three-day vacation in Brazil, a country known for its rich
A: As a general rule, under Article 7 of the VCDR, the sending biodiversity and abundant natural resources. Determined to
State may freely appoint the members of the staff of the mission. carry along a precious gift to his wife, Bartolome packed into
However, as exceptions: his luggage a protected species of orchid found only in Brazil.
Sniffing dogs at the Rio de Janeiro International Airport
1. In the case of military, naval or air attaches, the receiving sensed something in his checked-in luggage, drawing the
State may require their names to be submitted beforehand, attention of airport officials. When asked to open the
for its approval.'484 luggage, Bartolome presented his diplomatic identification
2. In the case of head of the mission, the sending State is and refused to submit to any inspection. Airport officials
informed him of the penal sanctions for transporting illegal
required to secure an agrement of the receiving State.'485
items suspected in any luggage. May Bartolome validly invoke
This agrement is a formal accreditation of the sending
State's proposed head of the mission.

1484
VCDR, Art. 7. 1486 VCDR, Art. 29.
1485
VCDR, Art. 4(1). 1487 VCDR, Art. 9.
 648 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 649
ON POLITICAL LAW

diplomatic immunity and inviolability of his personal luggage? sounds of State Paradise, a country known for its beauty and
Explain briefly.1488 other attractions. While in State Paradise, Ambassador
A: No, Bartolome may not invoke diplomatic immunity and Gaylor was caught in the company of children under
inviolability of his personal luggage. suspicious circumstances. He was arrested for violation of
the strict anti-pedophilia statute of State Paradise. He claims
Under Article 30(1) of the VCDR, it is provided that "[a] that he is immune from arrest and incarceration by virtue of
diplomatic agent shall enjoy immunity from the criminal his diplomatic immunity. Does the claim of Ambassador
jurisdiction of the receiving State." Thus, a diplomat enjoys Gaylor hold water?1491
diplomatic immunity only in the territory of the receiving State.
In this case, Bartolome's enjoyment diplomatic immunity is A: Ambassador Gaylor cannot invoke his diplomatic immunity.
Article 31(1) of the VCDR provides that "[a] diplomatic agent
limited only to Argentina. Since Brazil is not the receiving State,
shall enjoy immunity from the criminal jurisdiction of the
Bartolome is not protected by diplomatic immunity in Brazil.
receiving State." Since State Paradise is not Ambassador Gaylor's
As Brazil is a "third State" (i.e., not the receiving State), Brazil is receiving state, he does not enjoy diplomatic immunity within its
then required to accord the diplomat only such inviolability and territory. Further, under Article 40(1) of the VCDR, he cannot be
"other immunities as may be required to ensure his transit" from accorded diplomatic immunity in State Paradise, because he is
his home country to his post, or vice versa." His personal not passing through it to take up or return to his post or to return
belonging (i.e. luggage) does not enjoy exemption from to State Paradise.
inspection as the diplomat was travelling on vacation and not in
Q: Ambassador Levi was sent by State Marley to State
transit from his home country to his post, or vice versa.
Paradis to investigate suspected Marleyan drug suppliers
Even assuming that Brazil is the receiving State, the diplomat's residing in the latter State. One time, Ambassador Levi
personal luggage is not exempt from inspection in the receiving decided to unwind and went out to drink in a bar. He got
State if, as in this case, there are serious grounds to presume that very drunk that he started trashing out the bar's stools and
it contains articles that are prohibited by the receiving State's tables. The bar owner sued Ambassador Levi for damages.
law, or controlled by the receiving State's quarantine regulations, Ambassador Levi moved to dismiss the case arguing that he
for import or export.' is entitled to diplomatic immunity. Decide.

Thus, Bartolome cannot invoke the inviolability of his personal A: The case should not be dismissed because Ambassador Levi
luggage as he is not entitled to diplomatic immunity. is not entitled to diplomatic immunity. As held in Minucher v.
Court of Appeals, I' the doctrine of immunity from suit will not
Q: Ambassador Gaylor is State Juvenus' diplomatic representative apply and may not be invoked where the public official is being
to State Hinterlands. During one of his vacations, Ambassador sued in his private and personal capacity as an ordinary citizen.
Gaylor decided to experience for himself the sights and The cloak of protection afforded the officers and agents of the
government is removed the moment they are sued in their individual

1488 BAR 2023.

"89 VCDR, Art. 40. 1491 BAR 2014.
149° VCDR, Art. 36(2). 1492
G.R. No. 142396, 11 February 2003.
 650 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 651
ON POLITICAL LAW

capacity. This situation usually arises where the public official Q: Explain the inviolability of the premises of the mission
acts without authority or in excess of the powers vested in him. It and the other privileges attached thereto.
is a well-settled principle of law that a public official may be
liable in his personal private capacity for whatever damage he A: The premises of the mission, which are comprised of buildings
may have caused by his act done with malice and in bad faith or or parts of buildings and the land ancillary thereto, irrespective
beyond the scope of his authority and jurisdiction.' Here, of ownership, shall be inviolable. The agents of the receiving
Ambassador Levi is being sued because of his actions of trashing State may not enter them, except with the consent of the head of
out when he got drunk at a bar which is clearly outside his the mission.1494
official functions as a diplomatic agent. Hence, he is not entitled Additionally, the premises of the mission, their furnishings and
to diplomatic immunity. other property thereon and the means of transport of the mission
shall be immune from search, requisition, attachment or
Q: What is the rule on diplomatic immunity from civil and
execution.'495 The sending State and the head of the mission
administrative jurisdiction of receiving State?
shall, as a general rule, be exempt from all national, regional or
A: Article 31(1) of the VCDR likewise exempts a diplomatic municipal dues and taxes in respect of the premises of the
agent from the exercise of civil and administrative jurisdiction of mission, whether owned or leased, other than such as represent
the receiving State. Unlike a blanket immunity from criminal payment for specific services rendered,' 496
jurisdiction, this immunity from civil and administrative jurisdiction
does not apply in the following instances: Q: How are consular relations established?

1. A real action relating to private immovable property A: Article 2 of the Vienna Convention on Consular Relations
situated in the territory of the receiving State, unless he (VCCR) provides the following rules in the establishment of the
holds it on behalf of the sending State for the purposes consular relations:
of the mission; 1. The establishment of consular relations between States
2. An action relating to succession in which the diplomatic takes place by mutual consent;
agent is involved as executor, administrator, heir or legatee 2. The consent given to the establishment of diplomatic
as a private person and not on behalf of the sending relations between two States implies, unless otherwise
State; or stated, consent to the establishment of consular relations; and
3. An action relating to any professional or commercial 3. The severance of diplomatic relations shall not ipso facto
activity exercised by the diplomatic agent in the receiving involve the severance of consular relations.
State outside his official functions.
According to Magallona, this rule provides room for States to
exclude consular relations intentionally when they establish

"94 VCDR, Art. 22(1).

"95 VCDR, Art. 22(3).
1493 1496
Id. VCDR, Art. 23(1).
 652 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 653
ON POLITICAL LAW

diplomatic relations. It may happen, on the other hand, that arrest or detention pending trial, except in the case of a grave crime
1500
consular relations may be established ahead as a preliminary step and pursuant to a decision by the competent judicial authority.
to diplomatic relations?"'
Q: Explain the inviolability of consular premises and its
Q: What is the rule on the sending State's authority to appoint appurtenant privileges.
heads of consular posts and members of consular staff?
A: The principle of inviolability mandates that the authorities of
A: As a general rule, under Articles 10 and 19 of the VCCR, the the receiving State shall not enter that part of the consular
sending State may freely appoint the heads of consular posts and premises which is used exclusively for the purpose of the work
members of the consular staff. However, as regards heads of of the consular post except with the consent of the head of the
consular posts, they shall only be admitted to the exercise of his consular post or of his designee or of the head of the diplomatic
functions by an authorization from the receiving State termed an mission. The consent of the head of the consular post may,
exequatur, whatever the form of this authorization.14' This is however, be assumed in case of fire or other disaster requiring
not a hard-fast rule. Article 13 of the VCCR provides that prompt protective action.' S01
"[p]ending delivery of the exequatur, the head of a consular post
may be admitted on a provisional basis to the exercise of The consular premises, their furnishings, the property of the consular
post and its means of transport shall be immune from any form
his functions."
of requisition for purposes of national defence or public utility,
Q: What is the rule on immunity of consular officers from subject to right of expropriation by the receiving State for the
judicial and administrative jurisdiction? same purposes.' Consular premises and the residence of the
career head of consular post shall be exempt from all national,
A: Consular officers and consular employees shall not be amenable regional or municipal dues and taxes.'
to the jurisdiction of the judicial or administrative authorities of
the receiving State in respect of acts performed in the exercise of Q: May a diplomatic mission perform consular functions?
consular functions.1499 This rule shall not, however, apply in A: Yes. In determining the functions of a diplomatic mission,
respect of a civil action either: Article 3(2) of the VCDR provides that "nothing in this
1. arising out of a contract concluded by a consular officer Convention shall be construed as preventing the performance of
or a consular employee in which he did not contract consular function by a diplomatic mission." Relatedly, Article 3
expressly or impliedly as an agent of the sending State; or of the VCCR states that consular functions are also exercised by
diplomatic missions in accordance with the provisions of the VCCR.
2. by a third party for damage arising from an accident in
the receiving State caused by a vehicle, vessel or aircraft.
With respect to criminal proceedings, consular officers shall
appear before the competent authorities but shall not be liable to

J5°° VCCR, Art. 41.

1497 Merlin M. Magallona, Fundamentals of Public International Law, 120 (2005 ed.). 1501 VCCR, Art. 31(2).
1498 Vienna Convention on Consular Relations, hereinafter "VCCR", Art. 12(1). 1502 VCCR, Art. 31(4).
1499 VCCR, Art. 43(1). 1503 VCCR, Art. 32(1).
 654 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 655
ON POLITICAL LAW

Q: Explain the implications if a diplomatic mission exercises Q: May the immunity of diplomatic agents and consular
consular functions. officers be waived?
A: Members of the diplomatic mission exercising consular A: Yes. The immunity from jurisdiction of diplomatic agents
functions shall continue to be governed by the VCDR as to and consular officers may be expressly waived by the sending
privileges and immunities. However, as regards the exercise of State, or by the initiation of proceedings by a diplomatic agent or
consular functions, the same shall comply with the conditions set consular officer in respect of any counterclaim directly connected
forth under VCCR.15°4 with the principal claim. However, such waiver in respect of
civil or administrative proceedings shall not be held to extend to
Q: What are the overarching principles governing and distinguishing the execution of the judgment, for which a separate waiver shall
the immunity of diplomatic agents and consular officers? be necessary.1508
A: The principles of ratione personae and ratione materiae
E. Treaties; Vienna Convention on the Law of Treaties
govern respectively the immunity enjoyed by diplomatic agents
and consular officers and distinguish one from the other. Q: What is a treaty?'
In ratione personae, immunity relates to status and is operationalized A: As defined under the Vienna Convention on the Law of Treaties
in terms of or by reason of an individual's person.' The question (VCLT), a treaty is an international agreement concluded
therefore pertains to who is immune, by virtue of the office between states in written form and governed by international law,
he/she holds.15°6 An example would be the immunity granted to whether embodied in a single instrument or in two or more related
the Heads of State, Heads of Government and Ministers for Foreign 51°
instruments and whatever its particular designation.'
Affairs, heads of diplomatic missions and representatives accredited
by States to an international conference or to an international Q: Explain the principle of pacta stunt servanda.151'
organization, as provided under Article 7(2)(a) of the VCLT, and
Article 14(1) of the VCDR. A: The doctrine of pacta sunt servanda means that every treaty
in force is binding upon the States who are parties to it, and
512
In ratione materiae, immunity relates to functionality and is States must perform their obligation in good faith.'
operationalized in terms of or by reason of categories or nature
of acts being performed by every acting State organ or agent. Q: Differentiate treaties from executive agreements.
The question therefore pertains to what is immune, whether particular
A: Treaty and Executive Agreement may be distinguished
acts are rendered in official or private capacity.1507 Article 43(1)
as follows:
of the VCCR serves as an example.

15°4 VCCR, Art. 70. '5°8 VCDR, Art. 32; VCCR, Art. 45.
'5°5 Yousuf v. Samantar, 699 F.3d 763, 02 November 2012. 1509 BAR 2012.
1506 Opinion by Legal Advisory Committee to the Minister of
Foreign Affairs of the 1510 VCLT, Art. 2(1)(a).
Republic of Poland on immunities of State officials from foreign criminal 15I 1 BAR 2000, 2017.
jurisdiction, 2015. 1512 VCLT, Art. 26; Deutsche Bank .4G Manila Branch v. CIR, G.R. No. 188550, 19
15°' Yousuf v. Samantar, 699 F.3d 763, 02 November 2012. August 2013.
656 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 657
ON POLITICAL LAW

1. In terms of subject matter, international agreements Q: Can the Senate demand that an Executive Agreement be
involving political issues or changes of national policy submitted to the Senate for ratification.'589
and those involving international agreements of a permanent
character usually take the form of treaties, while those A: No. Executive Agreements need not be submitted to the Senate
embodying adjustment of detail carrying out well established for its concurrence, under the provisions of Section 21 of Article
national policies and traditions and those involving VII of the 1987 Constitution.' 52° Under Section 25 of Article XVIII
arrangements of a more or less temporary nature take the of the Constitution, only treaties would need the concurrence of
form of executive agreements.1513 the Senate. It should be noted that, under the Constitution, the
Senate merely provides its concurrence to, and does not ratify,
521
2. In terms of approval, Sarmiento explains that "a treaty treaties. It is the President who ratifies treaties.'
is concluded by the President and concurrence by at least
two-thirds (2/3) of all Members of the Senate.' On the Q: An executive agreement was executed between the Philippines
other hand, an executive agreement is concluded by the and a neighboring State. The Senate of the Philippines took it
President based on authority granted by Congress or based upon itself to procure a certified true copy of the executive
on the inherent authority granted by the Constitution.' agreement and after deliberating on it, declared, by a unanimous
If there is an irreconcilable conflict, a later law or treaty vote, that the agreement was both unwise and against the
takes precedence over one that is prior. Executive best interest of the country. Is the Executive Agreement binding
agreements that are inconsistent with either a law or a from the standpoints of: Philippine law and International law?
treaty are considered ineffective.'516 A: Yes. From the standpoint of Philippine law, the executive
3. In terms of binding effect, there is no distinction in their agreement is binding. In the case of Commissioner of Customs v.
binding effect upon States as long as the negotiating Eastern Sea Trading' 522 the court ruled that President can enter
functionaries have remained with their powers.1517 An into an Executive Agreement without the necessity of concurrence
international agreement that meets the requirement of the by the Senate.
definition of a treaty is recognized as a treaty whatever It is also binding from the standpoint of international law. As
its particular designation.' 518
held in Bayan v. Zamora' 523 under international law, executive
agreements are equally binding as treaties upon the States who
are parties to them. Additionally, under Article 2(1)(a) of the
VCLT, whatever may be the designation of a written agreement
between States, whether it is indicated as a Treaty, Convention

1513 Bayan Muna v. Romulo, G.R. No. 159618, 11 February 2011.

1514 CONST., Art. VII, Sec. 21. 1519 BAR 2015.
1515 Ralph A. Sarmiento, Public International Law: Bar Reviewer 29 (2016 ed.). 1520 China National Machinery &Equipment Corporation v. Sta. Maria, G.R. No.
1516 Saguisag v. Ochoa, (3.12. No. 212426, 12 January 2016. 185572, 07 February 2012.
1517 USAFFE Veterans Association, Inc. v. Treasurer of the Philippines, G.R. No. L- 1521 Pimentel v. Executive Secretary, G.R. No. 15808, 16 July 2008.
10500, 30 June 1959. 1522 G.R. No. L-14279 31 October 1961.
1518 VCLT, Art. 2. 1523 G.R No. 138570, 10 October 2000.
658 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 659
ON POLITICAL LAW

or Executive Agreement, is not legally significant. It is still Q: The President alone without the concurrence of the Senate
considered a treaty and governed by the international law on treaties. abrogated a treaty. Assuming that the other country-party to
the treaty is agreeable to the abrogation provided it complies
Q: State A and State B, two sovereign states, enter into a 10- with the Philippine Constitution, if a case involving the
year mutual defense treaty. After five years, State A finds validity of the treaty abrogation is brought to the Supreme
that the more progressive State B did not go to the aid of Court, how should it be resolved?'528
State A when it was threatened by its strong neighbor State C.
State B reasoned that it had to be prudent and deliberate in A: The Supreme Court should dismiss the case. The case involved
reacting to State C because of their existing trade treaties. is a political question, because it pertains to the authority of the
May State A now unilaterally withdraw from its mutual President in the conduct of foreign relations and the extent to
defense treaty with State B? Explain your answer.1524 which the Senate is authorized to negate the action of the
President. Since Section 21, Article VII of the Constitution is
A: Yes. Since State B committed a material breach of the treaty silent as to the participation of the Senate in the abrogation of a
by failing to come to the aid of State A, then the latter may treaty, the question may be answered in different ways and
unilaterally withdraw from the mutual defense treaty:525 should be decided by political standards rather than judicially
manageable standards. `529
Q: The President signs an agreement with his counterpart in
another country involving reciprocity in the treatment of Q: A Senator filed a petition for mandamus to compel a
each country's nationals residing in the other's territory. newly elected President to sign, approve, and transmit to the
However, he does not submit the agreement to the Senate for Senate for its ratification the treaty creating the International
concurrence. Section 21, Article VII of the 1987 Constitution Criminal Court. Should this petition prosper? Explain briefly.19°
provides that no treaty or international agreement shall be
valid and effective without such concurrence. Is the agreement A: No, the petition should not prosper. In Pimentel, Jr. v. Office
signed by the President effective despite the lack of Senate of the Executive Secretary,1531 the court held that it is within the
concurrence?1526 exclusive authority of the President to refuse to submit a treaty to
the Senate or, having secured its consent for its ratification,
A: The agreement signed by the President is effective even if refuse to ratify it. Such decision is within the competence of the
there is no concurrence by the Senate because the agreement is in President alone, which cannot be encroached by the court via a
the nature of an executive agreement and need not be submitted to writ of mandamus. The court has no jurisdiction over actions seeking
the Senate for concurrence in its ratification.'527 to enjoin the President in the performance of his official duties.

1524 BAR 2017.

1525 VCLT, Art. 60(i); Robert Kolb, The Law of Treaties: An Introduction, 220 (2016 1528 BAR 2009.
ed.); Anthony Aust, Modern Treaty Law and Practice, 236-237 (2013 ed.). 1529 Goldwater vs. Carter, 444 U.S. 996, 13 December 1979.
1526 BAR 2017. 153° BAR 2020/21.
1527 Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444, 12 January 2016. 153 G.R. No. 158088, 06 July 2005.
 660 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 661
ON POLITICAL LAW

Q: President D can enter into an agreement with the President c) What are the requisites for such service contracts or
of China for the Joint Exploration of oil deposits and mineral joint explorations with foreign nationals or companies
resources in the contested maritime features within the to be valid?
Philippines' Exclusive Economic Zone (EEZ).
A: Such service contracts may be entered into only with respect
a) Can the President allow Chinese fishermen to fish to minerals, petroleum and other mineral oils. The grant thereof
within the Philippines' EEZ? is subject to several safeguards, among which include that: (1)
the service contract shall be crafted in accordance with a general law
A: No. The State shall protect the nation's marine wealth in its
that will set standard or uniform terms, conditions and requirements,
archipelagic waters, territorial sea, and exclusive economic zone,
presumably to attain a certain uniformity in provisions; and (2) the
and reserve its use and enjoyment exclusively to Filipino
service contract shall avoid the possible insertion of terms
citizens.1532
disadvantageous to the country.' 534
On the other hand, as the sole organ of our foreign relations and
the constitutionally assigned chief architect of our foreign policy, Q: The Japanese government confirmed that during the
the President is vested with the exclusive power to conduct and Second World War, Filipinas were among those conscripted
manage the country's interface with other states and governments.1533 as "comfort women" for Japanese troops in various parts of Asia.

b) Does the Constitution prohibit service contracts or joint The Japanese government has accordingly launched a goodwill
campaign and has offered the Philippine government substantial
explorations of our natural resources with foreign
assistance for a program that will promote thru government
nationals or companies?
and non-government organizations (NGOs) women's rights,
A: No. The last paragraph of Section 2, Article XII of the 1987 child welfare, nutrition and family health care. An executive
Constitution, reads as follows: "The President may enter into agreement is about to be signed for that purpose. The agreement
agreements with foreign-owned corporations involving either includes a clause whereby the Philippine government
technical or financial assistancefor large-scale exploration, acknowledges that any liability to the "comfort women" or
development, and utilization ofminerals, petroleum, and other their descendants are deemed covered by the reparations,
mineral oils according to thegeneral terms and conditions agreements signed and implemented immediately after the
provided by law, based on real contributions to the economic Second World War. Juliano Iglesias, a descendant of a now
growth and general welfare of the country. In such agreements, deceased comfort woman, seeks your legal advice on the
the State shall promote the development and use of local validity of the agreement.
scientific and technical resources." "The President shall notify
A: Yes. The agreement is valid. The comfort women and their
Congress of every contract entered into in accordance with this
descendants cannot assert individual claims against Japan. As
provision, within thirty days from its execution." 535
held in Vinuya v. Executive Secretary, ' the sovereign authority
of a State to settle claims of its nationals against foreign countries

1534 Resident Marine Mammals of the Protected Seascape Tailon Strait v. Reyes,
1532 CONST., Art. 12, Sec. 2. G.R. No. 180771, 21 April 2015.
1533 Rene Saguisag, et al., v. Executive Secretary, et al., G.R No. 212426, 12 January 2016. 1535 G.R. No. 162230, 28 April 2010.
 662 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 663
ON POLITICAL LAW

has repeatedly been recognized. This may be made without the 1. When a treaty is a mere formal expression of customary
consent of the nationals or even without consultation with them. international law, which, as such is enforceable on all
Since the continued amity between a State and other countries civilized states because of their membership in the
may require a satisfactory compromise of mutual claims, the family of nations;
settlement of such claims may only be made by executive agreement.
2. Under Article 2 of the UN Charter, the UN shall ensure
Q: Explain the concept of auto-limitation under the treaty law.1536 that non-member States act in accordance with the
principles of the UN Charter so far as may be necessary
A: Under the principle of auto-limitation, any state may by its for the maintenance of international peace and security;
consent, express or implied, submit to a restriction of its sovereign
rights. There may thus be included a curtailment of what otherwise 3. Under Article 103 of the UN Charter, obligations of
is a plenary power.1537 member-states shall prevail in case of conflict with any
other international agreement including those concluded
Q: Differentiate amendment from modification of treaty. with non-members;
A: An amendment, according to Shaw, is a formal alteration of 4. The treaty itself may expressly extend its benefits to
the treaty provision, affecting all parties to the agreement. On the non-signatory States; and
other hand, modifications are variations of certain treaty terms as
between particular parties only.1538 5. Parties to apparently unrelated treaties may also be
linked by the most-favored nation clause.
Q: What are the modes under international law for a state to
express consent to be bound by a treaty under international law? Q: What are the restrictions on the subject matter of treaties?

A: The consent of a State to be bound by a treaty may be expressed A: The following are restrictions on the subject matter of treaties:
by signature, exchange of instruments constituting a treaty,
1. Jus Cogens restrictions - A treaty is void if, at the time
ratification, acceptance, approval or accession or by any other of its conclusion, it conflicts with a preemptory norm of
means if so agreed:539 general international law.'"
Q: When may a third State who is a non-signatory to a 2. Principle of Charter Supremacy - In the event of a
treaty be bound by the said treaty? conflict between the obligations of the Members of the
A: The following are the instances when a third non-signatory UN under the UN Charter and their obligations under
State may be bound by a treaty: any other international agreement, their obligations
under the UN Charter shall prevail.154'

1536 BAR 2006.

1537 Reagan v. CIR, G.R. No. L-26379, 27 December 1969.
1538 Malcolm N. Shaw, International Law (8th ed., 2017). 154° VCLT, Art. 53.
1539 VCLT, Art. 11. 1541 UN Charter, Art. 103.
 664 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 665
ON POLITICAL LAW

Q: When may treaty violate international law? ratification is dispensed with and no effectivity clause is
embodied in the treaty, the instrument is deemed effective
A: A treaty may violate international law under the following
upon its signature."
instances:
4. Exchange of the instruments of ratification "usually
1. At the time of its conclusion, the treaty conflicts with a
also signifies the effectivity of the treaty unless a different
peremptory norm of general international law (jus cogens); or date has been agreed upon by the parties."1543
2. If the treaty's conclusion has been procured by the threat
5. Registration. The treaty may then be submitted for
or use of force in violation of the principles of international registration and publication under the UN Charter,
law embodied in the UN Charter!'
although this step is not essential to the validity of the
Q: What are the steps involved in treaty-making process? agreement as between the parties!'

A: The usual steps in the treaty-making process are negotiation, Q: EDCA authorizes the U.S. military forces to have access
signature, ratification, and exchange of the instruments of ratification. to and conduct activities within certain "Agreed Locations"
in the country. It was not transmitted to the Senate on the
1. Negotiation "may be undertaken directly by the head of executive's understanding that to do so was no longer necessary.
state or authorized representatives who are provided with Accordingly, in June 2014, the Department of Foreign Affairs
credentials known as full powers, which they exhibit to (DFA) and the U.S. Embassy exchanged diplomatic notes
the other negotiators at the start of the formal discussions." confirming the completion of all necessary internal requirements
for the agreement to enter into force in the two countries.
2. Signature "is primarily intended as a means of authenticating
Petitioners primarily argue that it should have been in the
the instrument and for the purpose of symbolizing the
form of a treaty concurred in by the Senate, not an executive
good faith of the parties; but, significantly, it does not agreement. Is the EDCA Constitutional?
indicate the final consent of the state in cases where
ratification of the treaty is required. If and when the A: Yes. As the sole organ of our foreign relations and the
negotiators finally decide on the terms of the treaty, the constitutionally assigned chief architect of our foreign policy, the
same is opened for signature. The document is ordinarily President is vested with the exclusive power to conduct and
signed in accordance with the alternat, that is, each of manage the country's interface with other states and governments.
the several negotiators is allowed to sign first on the No court can tell the President to desist from choosing an executive
copy which he will bring home to his own state." agreement over a treaty to embody an international agreement,
unless the case falls squarely within Article VIII, Section 25 of
3. Ratification "is the formal act by which a state confirms
the 1987 Constitution.'"
and accepts the provisions of a treaty concluded by its
representatives. The purpose of ratification is to give the
contracting states an opportunity to refuse to be bound
by it should they find it inimical to their interests. Where
1543 Pimentel, Jr. v. Office of the Executive Secretary, G.R. No. 158088, 06 July
2005.
1544 Id.

1542 VCLT, Art. 52; UN Charter, Art. 103. 1545 Rene Saguisag et al., v. Executive Secretary, et al., GR No. 212426, 12 January 2016.
 666 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 667
ON POLITICAL LAW

Q: What is meant by full powers? Q: What is the rule when there is no ratification yet but the
State has already signed a treaty or has already exchanged
A: Full powers mean a document emanating from the competent
instruments constituting the treaty?
authority of a State designating a person or persons to represent
the State for negotiating, adopting or authenticating the text of a A: The State is obliged to refrain from acts which would defeat
549
treaty, for expressing the consent of the State to be bound by a treaty, the object and purpose of a treaty.'
or for accomplishing any other act with respect to a treaty.'"
Q: Define reservation.
As a rule, a person is considered authorized to represent the State
if he produces appropriate full powers. As exceptions, no full A: Reservation is a unilateral statement, however phrased or
power is required if: named, made by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to exclude
1. it appears from the practice of the States concerned or or to modify the legal effect of certain provisions of the treaty in
55°
from other circumstances that their intention was to their application to that State.'
consider that person as representing the State for such
purposes and to dispense with full powers;'547 Q: When is reservation not allowed?

2. by virtue of their functions, the person representing the A: Reservation is not allowed when:
State is either of the following: 1. the reservation is prohibited by the treaty;
a. Heads of State, Heads of Government and Ministers
2. the treaty provides that only specified reservations,
for Foreign Affairs, for the purpose of performing all which do not include the reservation in question, may be
acts relating to the conclusion of a treaty; made; or
b. heads of diplomatic missions, for the purpose of
3. in cases not failing under subparagraphs (a) and (b), the
adopting the text of a treaty between the accrediting reservation is incompatible with the object and purpose
State and the State to which they are accredited; of the treaty.' 55'
c. representatives accredited by States to an international
Q: What is the rule when the reserving State has maintained
conference or to an international organization or one
a reservation that is objected to by one or more of the parties
of its organs, for the purpose of adopting the text of
to the Convention?
a treaty in that conference, organization or organ.' 54s
552
A: Pursuant to the Reservations to the Genocide Convention,'
a State which has maintained a reservation that has been objected

1549 VCLT, Art. 18.

155° VCLT, Art. 2(1)(d).
1546 VCLT, Art. 2(1)(c). 1551 VCLT, Art. 19.
1547 VCLT, Art. 7(1). 1552 Reservations to the Convention on Genocide (Advisory Opinion), ICJ Reports,
1548 VCLT, Art. 7(2). 15 (1951).
 668 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 669
ON POLITICAL LAW

to by one or more of the parties to the Convention but not all can In case a treaty contains no provision regarding its termination and
still be regarded as a party to the Convention if the reservation is does not provide for denunciation or withdrawal, as a general rule,
compatible with the object and purpose of the Convention. said treaty is not subject to denunciation or withdrawal, unless:
Consequently, the party who objects to a reservation made by
another which it considers to be incompatible with the object and 1. it is established that the parties intended to admit the
purpose of the Convention can in fact consider that reserving possibility of denunciation or withdrawal; or
state as not a party to the convention as between them. 2. a right of denunciation or withdrawal may be implied by
Q: What are the legal effects of reservations? the nature of the treaty.

A: Magallona explained that a reservation maintained in accordance In such case, a party shall give not less than twelve months'
555
with the rules set forth under the VCLT has the following effects: notice of its intention to denounce or withdraw from a treaty.'

1. "as between the reserving State and any other party, it Q: What are the guidelines anent treaty withdrawal by the
modifies the provisions of the treaty to the extent of Philippines?
reservation;
A: While Senate concurrence is expressly required to make treaties
2. as between the other parties inter se (i.e., excluding the valid and effective, no similar express mechanism concerning
reserving State), the reservation does not affect the withdrawal from treaties or international agreements is provided
provisions of the treaty; and in the Constitution or any statute. Similarly, no constitutional or
statutory provision grants the president the unilateral power to
3. as between the reserving State and the objecting State 556
terminate treaties. The Court therefore in Pangilinan v. Cayetano'
which does not oppose the entry into force of the treaty made the following guidelines:
between them, the provisions to which the reservation
relates do not apply to the extent of the reservation."1553 1. First, the President enjoys some leeway in unilaterally
withdrawing from agreements which he or she determines
Q: How does termination of or withdrawal from a treaty is to be contrary to the Constitution or statutes;
effected?
2. Second, the President cannot unilaterally withdraw from
A: The termination of a treaty or the withdrawal therefrom may agreements which were entered into pursuant to congressional
take place: imprimatur; and
1. in conformity with the provisions of the treaty; or 3. Third, the President cannot unilaterally withdraw from
international agreements where the Senate concurred and
2. at any time by consent of all the parties after consultation
expressly declared that any withdrawal must also be
with the other contracting States.'554
made with its concurrence.

1553 VCLT, Art. 21; Merlin M. Magallona, Fundamentals of Public International

Law, 191 (2005 ed.). 1555 VCLT, Art. 56.
1554 VCLT, Arts. 21 and 54. 1556 G.R. Nos. 238875, 239483 & 240954, 16 March 2021.
 670 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 671
ON POLITICAL LAW

Q: Enumerate the grounds for termination or suspension of Q: What is the rule on the termination of a treaty as a
a treaty. consequence of material breach?
A: Nachura lists down the following as grounds for termination A: A material breach of a treaty consists in (a) a repudiation of
or suspension of a treaty: the treaty not sanctioned by the present Convention; or (b) the
violation of a provision essential to the accomplishment of the
1. Agreement of the parties;'557
object or purpose of the treaty. Distinction must be made between
2. Goal of the treaty is already realized; material breach of a bilateral treaty and that of multilateral treaty
insofar as the consequences are concerned:
3. Material breach;' 558
1. A material breach of a bilateral treaty by one of the
4. Supervening impossibility of performance;'559 parties entitles the other to invoke the breach as a ground
5. Rebus Sic Stantibus or the fundamental change of for terminating the treaty or suspending its operation in
whole or in part;
circumstances;15"
6. Later inconsistent treaties between the parties; 2. A material breach of a multilateral treaty by one of the
parties entitles:
7. War between contracting parties;
a. the other parties by unanimous agreement to suspend
8. Expiration of term; the operation of the treaty in whole or in part or to
terminate it either:
9. Extinction of one of the parties to the treaty in a bipartite
treaty, when the rights and obligations would not devolve i. in the relations between themselves and the
upon succeeding State; defaulting State; or

10. Denunciation or desistance by one of the parties; ii. as between all the parties;

11. Loss of subject matter; b. a party specially affected by the breach to invoke it
as a ground for suspending the operation of the
12. Severance of diplomatic relations, when indispensable in treaty in whole or in part in the relations between
the treaty; and itself and the defaulting State;
13. Emergence of a new jus cogens norm which renders c. any party other than the defaulting State to invoke
void any existing conflicting treaty.1561 the breach as a ground for suspending the operation
of the treaty in whole or in part with respect to itself
if the treaty is of such a character that a material
breach of its provisions by one party radically changes
1557
VCLT, Art. 54.
1558
VCLT, Art. 60.
1559
VCLT, Art. 61. 1561 VCLT, Arts. 54 to 63; Antonio Eduardo B. Nachura, Outline Reviewer in
1560
VCLT, Art. 62. Political Law, 688 (2014 ed.).
672 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 673
ON POLITICAL LAW

the position of every party with respect to the further Q: Carlos, a foreign national was charged with and convicted of a
performance of its obligations under the treaty. '562 serious crime in State X and sentenced to life imprisonment.
His country applied for relief with the International Court of
Q: What is the Doctrine of Rebus Sic Stantibus? Justice (ICJ), arguing that State X did not inform Carlos of
A: The Supreme Court held in Saguisag v. Ochoal' that the his right under Article 36 of the Vienna Convention to be
principle of "rebus sic stantibus," as provided under Article 62 accorded legal assistance by his government. State X, as
of the VCLT, states that a fundamental change of circumstances signatory to the Vienna Convention, agreed to ICJ's compulsory
may be a ground to terminate or withdraw from a treaty, jurisdiction over all disputes regarding the interpretation or
provided the following conditions are met: application of the Vienna Convention. ICJ ruled that State X
violated its obligation to provide consular notification to the
1. the change must be of circumstances existing at the time foreign national's country. ICJ also required State X to review
of the conclusion of the treaty; and reconsider the life sentence imposed on the foreign
national. State X then wrote the United Nations informing that
2. the change must be fundamental; it was withdrawing from the Optional Protocol on Vienna
3. the change must not have been foreseen by the parties; Convention and was not bound by the ICJ decision.
1566
4. the existence of those circumstances must have constituted a) What principle of international law did State X violate?
an essential basis of the consent of the parties to be A: State X violated the principle of pacta sunt servanda which
bound by the treaty; and means that every treaty in force is binding upon the States who
5. the effect of the change must be radically to transform the scope are parties to it, and States must perform their obligation in
of obligations still to be performed under the treaty. '564 good faith.'567

Note however that despite the existence of all these conditions, b) Are the principles of pacta sunt servanda and rebus sic
the doctrine may not be invoked at any rate: stantibus relevant in the treaty relations between State A
and State B? What about in the treaty relations between
1. in treaties establishing a boundary; and State B and State C? Explain your answer.'568
2. in cases where a fundamental change has been brought A: Yes. Pacta sunt servanda was what bound State A and State
about by a breach of the treaty by the party involved or B to comply with their obligations under their mutual defense
by that party's breach of other international obligations treaty, despite the existing trade agreements between State B and
owed to the other parties to the treaty.'565 State C. Article 62 of the VCLT, which enunciates the doctrine
of rebus sic stantibus, on the other hand, can be invoked by State
B as the reason why it did not comply with its mutual defense
treaty. A treaty is concluded with the implied condition that it is
1562 VCLT, Art. 60.
1563 Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444, 12 January 2016.
1564 VCLT, Art. 62; See Fisheries Jurisdiction (United Kingdom v.Iceland), Judgment, ICJ 1566 BAR 2011.
Reports 1973, p. 3. 1567 Deutsche Bank ,4G Manila Branch v. CIR, G.R. No. 188550, 19 August 2013.
1565 Id. 1568 BAR 2017.
 674 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 675
ON POLITICAL LAW

intended to be binding only as long as there is no vital change in naturalization laws may govern the determination of one's
the circumstances. To State B, compliance with the treaty would nationality.
jeopardize its vital trade development. Because of this unforeseen
change of circumstances combined with State B's non-compliance However, for a State to claim a person as a national, the State must
with its obligations under the treaty in good faith, State A may have reasonable connection or an "effective link" with that person.157°
now opt to unilaterally withdraw from the treaty.
Q: What is the Principle of Effective Nationality?
Q: What are the legal consequences of termination of a treaty?
A: Under the Principle of Effective Nationality, a person having
A: Article 70 of the VCLT states that unless the treaty otherwise more than one nationality shall be treated as if he had only one —
provides or the parties otherwise agree, the termination of a treaty: either the nationality of the State in which he is a habitually and
principally resident, or the nationality of the State with which he
1. releases the parties from any obligation further to perform 571
appears in fact to be the most closely connected.'
the treaty; and
Q: What is the status of foundlings under international law?
2. does not affect any right, obligation or legal situation of
the parties created through the execution of the treaty A: In Poe-Llamanzares v. COMELEC,'572 the Supreme Court
prior to its termination. ruled that foundlings are considered citizens under international
law. To this effect, many countries have passed legislation
The same rule applies if a State denounces or withdraws from a
recognizing foundlings as citizens. It is likewise a generally
multilateral treaty from the date when such denunciation or
accepted principle of international law to presume foundlings as
withdrawal takes effect, insofar as the relations between that
having been born of nationals of the country in which the
State and each of the other parties to the treaty is concerned.'
foundling is found.
F. Nationality and Statelessness (R.A. No. 9225; Hague
Q: Who are stateless persons?'573
Convention of 1930)
A: Stateless persons are those who do not have a nationality or
Q: How do States determine who are to be their nationals? are not considered as a national by any State.' Bernas
A: Articles 1 and 2 of the Convention on Certain Questions explained that they are either de jure or de facto stateless. De
Relating to the Conflict of Nationality Laws, otherwise known as jure stateless persons are those who have lost their nationality, if
the 1930 Hague Convention on Conflict of Nationality Laws they had one, and have not acquired a new one. De facto
(1930 Hague Convention), provide that each State has the right to stateless persons are those who have a nationality but to whom
decide who its nationals are and any question as to whether a
person possesses the nationality of a particular State shall be
determined in accordance with the laws of that State. For this
purpose, the principles of jus sanguinis or jus soli or other 1570 Malcolm N. Shaw, International Law, 493-495,760 (8th ed., 2017).
1571 Nottebohm Case (Liuchtenstein v. Guatemala), ICJ Reports, 1955.
1572 G.R. No. 221697, 08 March 201 6.
1573 BAR 1995.
1574 1954 Convention Relating to the Status of Stateless Persons, hereinafter "CRSSP",
1569 VCLT, Art. 70. Art. 1.
 676 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 677
ON POLITICAL LAW

protection is denied by their state when out of the state. This is Q: What are the general obligations of refugees to the
the situation of many refugees.'575 country where they find themselves?

Q: What rights are afforded to stateless personsr76 A: Every refugee has duties to the country in which he finds
himself, which require in particular that he conform to its laws
A: Considering that stateless persons do not generally enjoy and regulations, as well as to measures taken for the maintenance
protection by any state, the Supreme Court held in Mejoff v. Director of public order.'S78
of Prisons157 that the protection against deprivation of liberty
without due process of law, except for crimes committed against Q: When does an individual's status as a refugee cease?
the laws of the land, is not limited to Filipino citizens but extends to
all residents, except enemy aliens, regardless of nationality. A: An individual's status as a refugee ceases if any of the
following circumstance occur:
Additionally, Articles 14 to 32 of the 1954 Convention Relating
to the Status of Stateless Persons (CRSSP) enumerate the rights 1. he has voluntarily re-availed himself of the protection of
enjoyed by stateless persons, namely: right to be naturalized, the country of his nationality;
right to acquire and dispose of property, including industrial 2. having lost his nationality, he has voluntarily reacquired it;
property, artistic rights, access to courts, right to a gainful
employment, right to enjoy benefits provided under social 3. he has acquired a new nationality, and enjoys the
welfare legislation, and administrative assistance, among others. protection of the country of his new nationality;

Q: Who is a refugee? 4. he has voluntarily re-established himself in the country

which he left or outside which he remained owing to fear
A: Article 1 of the Convention Relating to the Status of of persecution; or
Refugees (CRSR) defines a refugee to be a person who, owing to
a well-founded fear of being persecuted for reasons of race, 5. he can no longer, because the circumstances in connection
religion, nationality, membership of a particular social group or with which he has been recognized as a refugee have
political opinion, is outside the country of his nationality and is ceased to exist, continue to refuse to avail himself of the
579
unable or owing to such fear, is unwilling to avail himself of the protection of the country of his nationality.'
protection of that country; or who, not having a nationality and
being outside the country of his former habitual residence, is Q: Who may not qualify as refugees?
unable or, owing to such fear, is unwilling to return to it.
A: The following persons are excluded to be refugees:
1. Those already receiving from organs or agencies of the
United Nations other than the UNCHR protection or
assistance so long as they are receiving such protection
or assistance;

1575Joaquin G. Bemas, S.J., Introduction to Public International Law, 151 (2009 ed.).
1576BAR 1995. 1578 Convention Relating to the Status of Refugees, hereinafter "CRSR", Art. 2.
1577 G.R. No. L-4254, 26 September 1951. 1579 CRSR, Art. 1(C).
 678 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 679
ON POLITICAL LAW

2. Those already recognized by the competent authorities having been convicted by a final judgment of a particularly serious
of the country in which they have taken residence as crime, constitutes a danger to the community of that country.
'582

having the rights and obligations which are attached to the

possession of the nationality of that country; Q: The Humanitarian Services Society (HSS), an international
non-government organization, assisted the displaced families
3. If they are serious reasons for considering that: of Tribe X who had to flee their home country in order to
a. he has committed a crime against peace, a war crime, escape the systematic persecution conducted against them by
or a crime against humanity; their country's ruling regime based on their cultural and religious
beliefs. Fearing for their lives, some of these displaced families,
b. he has committed a serious non-political crime outside with the help of HSS, were able to sail out into the sea on a
the country of refuge prior to his admission to that boat which eventually landed in Palawan. The Philippine Coast
country as a refugee; Guard intended to push back the boat with 15 passengers.
An affiliate of HSS in the Philippines intervened on behalf of
c. he has been guilty of acts contrary to the purposes
these displaced families, claiming that they are refugees
and principles of the United Nations.158°
under international law and hence, should not be expelled
from our territory. May the displaced families of Tribe X be
Q: Briefly explain the principle of non-refoulement? 1583
considered "refugees" under international law? Explain.
A: The principle of non-refoulement provides that no contracting
State shall expel or return ("refouler") a refugee in any manner A: Yes. They are considered as refugees under international law.
whatsoever to the frontiers of territories where his life or freedom Under the 1951 CRSR, to which the Philippines is a signatory of,
would be threatened on account of his race, religion, nationality, a refugee includes one who, as a results of events and owing to
membership of a particular social group or political opinion.' well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or
This is enshrined as one of the basic principles under Section 3 political opinion, is outside the country of his nationality and is
of Department of Justice Circular No. 024, Series of 2022, along unable or, owing to such fear, is unwilling to avail himself of the
with the rule that an applicant for refugee and/or stateless status protection of that country. In this case, Tribe X is escaping
shall not be penalized on account of illegal entry or presence in persecution from their country's ruling regime due to their
the country, provided he or she presents himself or herself cultural and religious beliefs. Thus, they can be considered as
without delay to the authorities and/or shows good cause for his refugees under the definition.'58a
or her illegal entry or presence.
Q: Because of the ongoing hostilities between Israel and
Q: What is the exception to non-refoulement? Palestine, Leonisa advised her husband, Mohamed, an Israeli
native, to seek refugee status in the Philippines. After six (6)
A: When there are reasonable grounds for regarding as a danger months of residing in the Philippines, Mohamed decided to
to the security of the country in which he is present, or who,

1582 CRSR, Art. 33(2).

15" DOJ Circ. No. 058-12, Sec. 10; CRSR, Art. 1(D), (E), (F). 1583 BAR 2019.
1581 CRSR, Art. 33.
1584 Public International Law Bar Reviewer, Ateneo Society of International Law (2022).
 680 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 681
ON POLITICAL LAW

apply for Filipino citizenship and submitted his Declaration exceptions. Magallona added that jurisdiction under international
of Intention. A year later following his arrival in the Philippines, law pertains to the "competence of a state to prescribe and
he filed a Petition for Naturalization with the Regional Trial enforce norms and processes of law, as well as adjudicate over
Court. The Office of the Solicitor General opposed Mohamed's persons, property, events and relations on the basis of those
Petition, arguing that he failed to comply with the requirement norms within its territory.,,1588
that the Declaration of Intention must be submitted one (1) 589
year before filing a Petition for Naturalization. For his part, Q: Explain the concept of sovereign immunity.'
Mohamed insisted that having obtained a refugee status
A: Sovereign immunity, according to Magallona, is a principle
under the 1951 Refugee Convention, he is exempted from
by which a State, its agents and property are immune from the
such requirement. If you were the judge, how would you
judicial process of another state. It is premised on juridical
resolve Mohamed's Petition?
equality of states, according to which a state may not impose its
A: Mohamed's Petition must be denied. Although it has been authority or extend its jurisdiction on another state without the
held that naturalization laws must be read in light of the consent of the latter through a waiver of immunity.159°
developments in international human rights law specifically the
granting of nationality to refugees and stateless persons,'585 this Q: What acts are protected by sovereign immunity?
should not be construed in derogation of the rule that all those A: According to Magallona, the concept of sovereign immunity
seeking to acquire Philippine citizenship must prove compliance has two approaches, namely:
with all the requirements of the law. The Philippines' international
commitment to the 1951 Refugee Convention or CRSR does not 1. Absolute immunity: all acts of a State and its government
amount to a blanket waiver of all the legal requirements for are covered by immunity; and
naturalization. The 1951 Refugee Convention or CRSR must be
2. Restrictive immunity: distinguishes acta jure imperii
read in consonance with the Philippine statutory requirements.'586
(sovereign or governmental acts) from acta jure gestiones
Here, having failed to comply with the Philippine statutory
(non-governmental, commercial or proprietary acts). Only
requirements of naturalization, Mohamed's Petition for Naturalization
acts jure imperii are protected by sovereign immunity in
should be denied.
the restrictive sense.' 59'
G. Jurisdiction of States The Philippines adheres to the restrictive approach. Thus, the
Supreme Court in JUSMAG Philippines v. NLRC1592 held that the
Q: Explain the concept of jurisdiction under international law.
application of the doctrine of immunity from suit has been
A: The Supreme Court in Hongkong and Shanghai Banking restricted to sovereign or governmental activities (jure imperii)
Corp. v. Sherman1587 held that in international law, jurisdiction is and cannot be extended to commercial, private and proprietary
often defined as the right of a State to exercise authority over
persons and things within its boundaries subject to certain
1588 Merlin M. Magallona, Fundamentals of Public International Law, 565 (2005 ed.).
1589 BAR 2017.
1585 Republic v. Karbasi, G.R. No. 210412, 29 July 2015. 159° Merlin M. Magallona, Fundamentals of Public International Law, 567 (2005 ed.).
1586 Mohamed v. Republic, G.R. No. 220674, 02 December 2021 (J. Lopez). 1591 Id. at 576-578.
1587 G.R. No. 72494, 11 August 1989. 1592 G.R. No. 108813, 15 December 1994.
682 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 683
ON POLITICAL LAW

acts (jure gestionis). This is likewise in accordance with Article 2. Jurisdiction to enforce; and
10 of the UN Convention on Jurisdictional Immunities of States
and Their Property. 3. Jurisdiction to adjudicate.' 595

Q: Provide examples of acta jure imperii and acta jure gestiones. Q: What are the bases of the States' exercise of jurisdiction?

A: In the case of Holy See v. Rosario,1593 the Supreme Court has A: A State can legally exercise jurisdiction over an individual or
considered the following transactions by a foreign state with a property based on the following principles: (1) territoriality; (2)
private parties as acts jure imperii: (1) the lease by a foreign nationality; (3) protective or security; (4) universality; and (5)
government of apartment buildings for use of its military passive personality.' 596
officers; (2) the conduct of public bidding for the repair of a
wharf at a naval station; and (3) the change of employment status 1. Territoriality Principle
of base employees.
Q: Explain the territoriality principle.
Meanwhile, the following transactions were considered as acts
A: Bernas explained that under the territoriality principle, "a
jure gestionis: (1) the hiring of a cook in the recreation center at
state has absolute, but not necessarily exclusive, power to prescribe,
the John Hay Air Station in Baguio City, to cater to American
adjudicate and enforce rules for conduct that occurs within its
servicemen and the general public; and (2) the bidding for the
territory."1597 It postulates that a state exercises exclusive jurisdiction
operation of barber shops in Clark Air Base in Angeles City.
(executive, legislative, and judicial) with respect to all persons,
Q: May the protection afforded by sovereign immunity be things, transactions, or happenings within its territorial limits.
extended to officials of the State with respect to the discharge The extent to which a State exercises jurisdiction over persons or
of their official functions? acts done outside its territory is narrower and depends on the
598
kind of jurisdiction it seeks to invoke.'
A: Yes. The rule is that if the judgment against such officials
will require the state itself to perform an affirmative act to satisfy Q: What is the effects doctrine?
the same, such as the appropriation of the amount needed to pay
the damages awarded against them, the suit must be regarded as A: As established in the Lotus Case, the effects doctrine means
against the state itself although it has not been formally impleaded.15' that a state has jurisdiction over acts occurring outside its
territory but having effects within it. I'
Q: What are the 3 types of jurisdiction under International Law?
A: International Law recognizes the following types of jurisdiction:
1. Jurisdiction to prescribe;

1595 Restatement (Third) of the Foreign Relations Law of the United States, hereinafter
"Restatement", Sec. 410.
1596 Id.

1597 Joaquin G. Bernas, S.J., Introduction to Public International Law, 133 (2009 ed.).
1593 G.R. No. 101949, 01 December 1994. 1598 Rolando A. Suarez, Political Law Reviewer, 1229 (2011 ed.).
1594 Wylie v. Rarang, G.R. No. 74135, 28 May 1992. 1599 The Case of the S.S. Lotus (France v. Turkey), PCIJ (1927).
684 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 685
ON POLITICAL LAW

Q: Distinguish between Subjective Territoriality and Objective cession; and (5) subjugation or conquest. These are further divided
Territoriality. into original and derivative modes.'6o3
A: The effects doctrine consists of two principles. First, subjective Q: Explain occupation as a mode of acquiring title to territory.
territoriality principle states that a state has jurisdiction to prosecute
and punish for crime commenced within the state but completed A: By occupation, what is referred to is not mere discovery but
or consummated abroad. Second, objective territoriality principle effective exercise of sovereignty over a territory which is terra
holds that a state has jurisdiction to prosecute and punish for crime nullius or not under the sovereignty of another state. Mere
control.'6os
commenced outside the state but consummated within its territory.1600 discovery is not enough. '604 There must be effective

Q: Illustrate the consequences of the effects doctrine. In the Island of Palmas Case, the Permanent Court of Arbitrator
explained the rule in occupying terra nullius: the continuous and
A: Magallona explained that on the basis of the effects doctrine, peaceful display of territorial sovereignty (peaceful in relation to
"two states may claim to have jurisdiction when an offense may other States) is as good as a title. There must be effective control
have been commenced in one state where, for example, the gun and not merely passive discovery. '606
was fired and causing injury to a person across the border in
another state. In that case, the first state is said to have the Q: Define terra nullius.
subjective territorial principle and the second state the objective
A: Terra nullius, according to Bernas, pertains to a territory
territorial principle. No rule in international law requires exclusive
which belongs to no one, or which has been abandoned by a
jurisdiction on the part of the second state."16'
prior occupant.1" 7
Q: Discuss the relevance of title vis-a-vis territorial sovereignty
Q: Explain prescription as a mode of acquiring title to territory.
in international law.
A: Prescription, according to Magallona, is the acquisition of
A: Shaw discussed that "the essence of territorial sovereignty is
sovereignty over a territory through continuous and undisturbed
contained in the notion of title. This term relates to "both the
exercise of sovereignty over it during such period as is necessary
factual and legal conditions under which territory is deemed to
to create under the influence of historical development the
belong to one particular authority or another."1'
general conviction that the present condition of things is in
Q: Enumerate the modes of acquiring title to territory. conformity with international order.' 6os

A: According to Shaw, acquisition of title to territory in classical

international law commonly refers to the following modes: (1)
occupation of terra nullius; (2) prescription; (3) accretion; (4)
1603 Id., at 367.
1604 Merlin M. Magallona, Fundamentals of Public International Law, 43 (2005 ed.);
Permanent Court of International Justice in Eastern Greenland Case, PCIJ Reports,
Series A/B, No. 53 (1933).
1605 Island of Palmas Case, International Arbitral Awards Reports, 829-871 (1928).
1606 Id.
1600 Trail Smelter Case, International Arbitral Awards Reports, 1905-1982 (1938/1941).
1607
1601 Merlin M. Magallona, Fundamentals of Public International Law, 49 (2005 ed.). Joaquin G. Bernas, S.J., Introduction to Public International Law, 103-104 (2009 ed.).
1602
Malcolm N. Shaw, International Law, 363 (8th ed., 2017). 16" Id. at 44.
686 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 687
ON POLITICAL LAW

Q: Explain accretion as a mode of acquiring title to territory. unacceptable. In this context, intertemporal law therefore requires
the application of the rules effective at the time of acquisition.1612
A: Accretion describes the geographical process by which new
land is formed and becomes attached to existing land, as for Q: How is the territoriality principle applied in the Philippine
example the creation of islands in a river mouth or the change in context?
direction of a boundary river leaving dry land where it had
formerly flowed.' A: Article 14 of the New Civil Code embodies the principle of
territoriality, which reads: "Penal laws and those of public
Q: Explain cession as a mode of acquiring title to territory. security and safety shall be obligatory upon all who live or
sojourn in Philippine territory, subject to the principles of public
A: Cession is mode of transfer of territory from one state to international law and to treaty stipulations."
another through treaty whereby the ceding state renounces its
title to such territory. It is a derivative mode since its validity Q: Explain the rule regarding crimes committed on foreign
depends on the valid title of the ceding state; the cessionary state vessels within Philippine territory.
cannot have more rights than what the ceding state possessed.161°
A: There are two fundamental rules in connection with
Q: Explain subjugation or conquest as a mode of acquiring international law:
title to territory.
1. French rule: crimes committed aboard a foreign merchant
A: As explained by Shaw, conquest is the act of defeating an vessel should not be prosecuted in the courts of the
opponent and occupying all or part of its territory. It may result country within whose territorial jurisdiction they were
from a legal or an illegal use of force, but it does not of itself committed unless their commission affects the peace and
constitute a basis of title to the land. It is not the successful use security of the territory; and
of violence that in international law would constitute the valid
method of acquiring territory. A further action of an international 2. English rule: crimes perpetrated under such circumstances
nature is required. Under the classical rules, formal annexation are in general triable in the courts of the country within
of territory or international recognition following an act of whose territory they were committed.1613 The Philippines
conquest would operate to pass title.'611 adheres to the English rule.

Q: Explain the concept of "intertemporal law" in relation to Q: Provide the fundamental principles governing the use of
modes of acquiring title to territory. high seas.

A: Some modes of acquiring title to territory lose its relevance A: Pursuant to Articles 87 and 89 of the UNCLOS, the high
in light of developments in international law. For instance, seas are open to all States, whether coastal or land-locked, and
acquisition through conquest or war now becomes obsolete and no State may validly purport to subject any part of the high seas
to its sovereignty. Hence, it is the right of every State to sail

1609 Malcolm N. Shaw, International Law, 369 (8th ed., 2017).

1610
Merlin M. Magallona, Fundamentals of Public International Law, 44 (2005 ed.). 1612 Joaquin G. Bernas, S.J., Introduction to Public International Law, 113 (2009 ed.).
1611
Malcolm N. Shaw, International Law, 371-372 (8th ed., 2017). 1613 People v. Wong Cheng, G.R. No. L-18924, 19 October 1922.
688 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 689
ON POLITICAL LAW

ships flying its flag on the high seas, who maintain exclusive and the ship." However, it has been a practice among States
jurisdiction over them.1614 Such a State is termed a "flag state." especially in business industry that shipowners register their ship
in the registry of another country, which files the flag of the
Further, the concept of freedom of the high seas encompasses the
latter; hence the concept of "flag of convenience".
following:
Magallona explained that "flag of convenience" refers to a flag
1. freedom of navigation;
of a State being flown by a ship which has no link at all to
2. freedom of overflight; such State.1618

3. freedom to lay submarine cables and pipelines; Q: What is the Right of Hot Pursuit?
4. freedom to construct artificial islands and other installations A: The Right of Hot Pursuit allows the competent authorities of
permitted under international law; the coastal State to pursue a foreign ship in the high seas when
they have good reason to believe that the ship has violated the
5. freedom of fishing, subject to the conditions laid down laws and regulations of the State."
in the UNCLOS; and
2. Nationality Principle
6. freedom of scientific research!'
Q: Explain the nationality principle.
Q: Discuss the legal status of ships sailing in the high seas.
A: According to Magallona, under the nationality principle, "a
A: As a rule, a state has exclusive jurisdiction over ships sailing
state may exercise jurisdiction over an offender by virtue of his
under its flag in the high seas, except insofar as provided for in
being its national, without regard as to where he was at the time
international treaties or under UNCLOS. '616 Corollary thereto,
the offense was committed and without respect to the nature of
warships, as well as ships owned or operated by a State and used
the offense."162°
only on government non-commercial service on the high seas
have complete immunity from the jurisdiction of any State other Q: How is the nationality principle applied in the Philippine
than the flag State.1617 context?
Q: Define a "flag of convenience". A: Article 15 of the New Civil Code embodies the principle of
nationality, which states: "Laws relating to family rights and
A: As a rule, Article 91 of the UNCLOS provides that "[e]very
duties, or to the status, and legal capacity of persons are binding
State shall fix the conditions for the grant of its nationality to
upon citizens of the Philippines, even though living abroad."
ships, for the registration of ships in its territory, and for the right
to fly its flag. There must exist a genuine link between the State

1614 UNCLOS, Arts. 90 & 92(1).

1615 UNCLOS, Art. 87. 1618 Merlin M. Magallona, Fundamentals of Public International Law, 465 (2005 ed.).
1616 UNCLOS, Art. 92. 1619 UNCLOS, Art. 111(1).
1617 UNCLOS, Art. 95, 96. 1620 Merlin M. Magallona, Fundamentals of Public International Law, 49 (2005 ed.).
 690 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 691
ON POLITICAL LAW

3. Protective Principle 5. Should commit any of the crimes against national security
and the law of nations, defined in Title One of Book
Q: What is the Protective Principle? Two of this Code.
A: Bernas opined that under the Protective Principle, a state
4. Universality Principle
may exercise jurisdiction over conduct outside its territory that
threatens its security, as long as that conduct is generally recognized Q: Explain the universality principle.
as criminal by state in the international community. 1621 States
claim extraterritorial criminal jurisdiction to punish crimes committed A: Under the universality principle, "a state may exercise
abroad which are prejudicial to their national security or interest, jurisdiction over crimes committed without respect to the nationality
even when the offenses are perpetrated by non-nationals.' of the offender, on the ground that such crimes are declared as
international crimes by the international community as a whole
Q: How is the protective principle applied in the Philippine and thus are prohibited by international law."1623 Malone listed
context? activities which are included, to wit: piracy, slavery, genocide,
hijacking, war crimes, and other crimes against humanity. 1624
A: The protective principle is underlined in Article 2 of the
Revised Penal Code (RPC), which states that the provisions of Q: How does the universality principle serve as a basis of
the Code shall be enforced not only within but also outside of criminal jurisdiction of states under international law?
Philippine jurisdiction, against those who:
A: According to Bernas, the universality principle recognizes that
1. Should commit an offense while on a Philippine ship certain offenses are so heinous and so widely condemned that
or airship; any state if it captures the offender may prosecute and punish
2. Should forge or counterfeit any coin or currency note of that person on behalf of the world community regardless of the
nationality of the offender or victim or where the crime was
the Philippine Islands or obligations and securities issued
committed.1625 These crimes are usually subjects of international
by the Government of the Philippine Islands;
conventions or treaties, and include piracy, genocide, crimes
3. Should be liable for acts connected with the introduction against humanity, war crimes, and terrorism, among others.1626
into these islands of the obligations and securities mentioned
in the presiding number; 5. Passive Personality Principle

4. While being public officers or employees, should commit Q: Explain the passive personality principle.
an offense in the exercise of their functions; or
A: As explained by Bernas, this principle authorizes states to
assert jurisdiction over offenses committed against their citizens
abroad. It recognizes that each state has a legitimate interest in

1623 Id.
1621 Joaquin G. Bernas, S.J., Introduction to Public International Law, 156 (2009 ed.) 1624 Linda A. Malone, International Law, 64 (1998 ed.).
citing Restatement, Sec. 402(3). 1625 Joaquin G. Bernas, S.J., Introduction to Public International Law, 169 (2009 ed.).
1626
1622 Nottebohm Case (Liechtenstein v. Guatemala), ICJ Reports, 1955. la at 157.
692 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 693
ON POLITICAL LAW

protecting the safety of its citizen when they journey outside b. between a conflict with the Constitution and a treaty,
national boundaries.1627 when constitutional violation is manifest and concerns
a rule of internal or domestic law of fundamental
6. Conflicts of Jurisdiction importance, a state may deviate from a treaty
obligation;' 631 and
Q: What are the modes of resolving conflicts of jurisdiction?
c. between a conflict with a domestic/municipal law
A: Since there are various accepted principles for assuming and a treaty, the later in date will prevail.1632
jurisdiction, more than one state may have a valid claim to
jurisdiction. The modes are as follows: 2. If an international tribunal decides, international law
prevails.'633 A state cannot invoke its own national law to
1. Balancing test: The State shall assume jurisdiction when resist an international claim or excuse itself from breach
the act's intended effect is sufficiently large and strong; law.'634
of duty under international
2. International comity: Even when a State has basis for 635
exercising jurisdiction, it will refrain from doing so if its Q: Explain the act of state doctrine.'
exercise will be unreasonable; A: The act of state doctrine is one of the methods by which
States prevent their national courts from deciding disputes which
3. Forum non conveniens: "It's application is discretionary,
relate to the internal affairs of another State. It is an avoidance
the court weighing private interest factors and public
technique that is directly related to a State's obligation to respect
interest factors."1628
the independence and equality of other States by not requiring
Q: What is the relationship between international law and them to submit to adjudication in a national court or to settlement of
domestic law and which governs in case of conflict? their disputes without their consent. It requires the forum court to
exercise restraint in the adjudication of disputes relating to
A: As a general rule, both must be harmonized to give effect to legislative or other governmental acts which a foreign State has
both systems of law. It is presumed that international law is performed within its territorial limits!'
enacted with due regard for domestic law and vice versa.' 629
As exceptions:
1. If a local court decides:
a. between a conflict with the Constitution and an
international law, the Constitution prevails;'630 VCLT, Art. 46.
1631
1632 Gonzales v. Hechanova, G.R. No. L-21897, 22 October 1963.
1633 Merlin M. Magallona, Fundamentals of Public International Law, 562 (2005 ed.).
1634 VCLT, Arts. 27, 30; Articles on Responsibility of States for Internationally
Wrongful Acts, hereinafter "ARSIWA", Art. 32; Treatment of Polish Nationals in
'627 Id, at 171. Danzig, PCIJ (1932).
1628 Ralph A. Sarmiento, Public International Law: Bar Reviewer, 173-174 (2016 ed.). 1635 BAR 2019.
1629 Secretary of Justice v. Lantion, G.R. No. 139465, 18 January 2000. 1636 Presidential Commission on Good Government v. Sandiganbayan, G.R. No.
163° Id. 124772, 14 August 2007.
694 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 695
ON POLITICAL LAW

H. Treatment of Aliens; Extradition and Deportation Q: Which is the prevailing standard in international law?
Q: What are the emerging schools of thought regarding the A: Despite the fact that the international minimum standard has
international protection of foreign nationals? been used as a basis for interference, Shaw is of the view that it
still received extensive support in case-law. For instance, in the
A: Shaw opined that the developed states of the West have Neer case, the Commission held that the propriety of governmental
argued historically that there exists an `international minimum acts should be put to the test of international standards and
standard' for the protection of foreign nationals and their explained that in order for the government's treatment of an alien
property that must be upheld irrespective of how the state treats to constitute an international delinquency, it should amount to an
its own nationals, whereas other states maintained that all the outrage, to bad faith, to willful neglect of duty, or to an
state need do is treat the alien as it does its own nationals (the insufficiency of governmental action so far short of international
`national treatment standard ').16" standards that every reasonable and impartial man would readily
Considering that the international minimum standard has been recognise its insufficiency. '640
used as a means of interference in internal affairs, the Calvo Additionally, Shaw explained that human rights law has
doctrine has been formulated which involves "a reaffirmation of developed considerably in recent years and can now be regarded
the principle of non-intervention coupled with the assertion that as establishing certain minimum standards of state behavior with
aliens were entitled only to such rights as were accorded nationals regard to civil and political rights.'64'
and thus had to seek redress for grievances exclusively in the
domestic arena."1" 8 Q: What is extradition?
Q: Distinguish the Calvo Doctrine from the Calvo Clause. A: Section 2(a) of PD No. 1069, otherwise known as the
"Philippine Extradition Law", defines extradition as the removal
A: The Calvo Doctrine provides that a State is not responsible of an accused from the Philippines with the object of placing him
for losses suffered by aliens in times of civil war. The Calvo at the disposal of foreign authorities to enable the requesting
Clause is used chiefly in contracts between a government and state or government to hold him in connection with any criminal
aliens. It prevents appeals by aliens to their home governments investigation directed against him or the execution of a penalty
for diplomatic intervention on behalf of their contract rights. The imposed on him under the penal or criminal law of the requesting
general tenor of Calvo Clause is that the alien agrees that any State or government.
dispute that might arise out of the contract is to be decided by the
national courts in accordance with national law and is not to give Q: Enumerate the elements of extradition.
rise to any international reclamation.1" 9
A: According to Sarmiento, extradition involves three elements:
1. Acts of sovereignty on the part of two States;

1637 Malcolm N. Shaw, International Law, 623 (8th ed., 2017). 1649 L. F. H. Neer and Pauline Neer (U.S.A.) v. United Mexican States, RIAA, 60-66
1638
Id. (1926).
1639 Charles G. Fenwick, International Law, 292 (1952 ed.). 1641 Malcolm N. Shaw, International Law, 623-624 (8th ed., 2017).
 696 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 697
ON POLITICAL LAW

2. A request by one State to another State for the delivery part on the basic principle of reciprocity" and "in part of the
to it of an alleged criminal; and maxim nulla poena sine lege."1645
3. The delivery of the person requested for the purposes of b) Assume that the extradition request was made after the
trial or sentence in the territory of the requesting state.' Philippines adopted its anti-hacker legislation. Will that
change your answer?
Q: On the part of the States, do they have a duty to extradite?
A: The Philippines will be under the obligation to extradite
A: No. Magallona explained that "in international law, the duty Lawrence. Both the Philippines and the United States have an
to extradite exists only by reason of an extradition treaty. In anti-hacker law. The requirement of double criminality is
other words, such a duty is a matter of conventional international satisfied even if the act was not criminal in the requested state at
law, not of customary law."1643 the time of its occurrence if it was criminal at the time that the
request was made.'
Q: Lawrence is a Filipino computer expert based in Manila
who invented a virus that destroys all the files stored in a Q: What are the five postulates of extradition?
computer. Assume that in May 2005, this virus spread all
over the world and caused $50 million in damage to property A: In the case of Government of the United States of America v.
in the United States, and that in June 2005, he was criminally Purganan,1647 the Supreme Court enumerated the five postulates
charged before United States courts under their anti-hacker of extradition:
law. Assume that in July 2005, the Philippines adopted its
1. Extradition is a major instrument for the suppression
own anti-hacker law, to strengthen existing sanctions already
of crime. Extradition treaties are entered into for the
provided against damage to property. The United States has
purpose of suppressing crime by facilitating the arrest
requested the Philippines to extradite him to US courts
and the custodial transfer of a fugitive from one state to
under the RP-US Extradition Treaty.
the other.
a) Is the Philippines under an obligation to extradite Lawrence?
2. The requesting state will accord due process to the
State the applicable rule and its rationale.'644
accused.
A: The Philippine is under no obligation to extradite Lawrence.
3. The proceedings are sui generis. The ultimate purpose
Under the principle of dual or double criminality, the crime must
be punishable in both the requesting and requested states to make of extradition proceedings in court is only to determine
whether the extradition request complies with the
it extraditable. In this case, only the United States had anti-
Extradition Treaty, and whether the person sought is
hacker law at the time of the commission of the crime in May
extraditable. It is not a criminal proceeding which will
2005. The rationale for the principle of dual criminality rests "in
call into operation all the rights of an accused as

1645 Ivan Anthony Shearer, Extradition in International Law, 137 (1971 ed.).
1642 Ralph A. Sarmiento, Public International Law: Bar Reviewer, 133 (2016 ed.). 1646 M. Cherif Bassiouni, International Extradition: United States Law and Practice,
1643 Merlin M. Magallona, Fundamentals of Public International Law, 50 (2005 ed.). 469 (4th ed., 1983).
1644 BAR 2007. 1647 G.R. No. 148571, 24 September 2002.
 "
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698 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 699

ON POLITICAL LAW

guaranteed by the Bill of Rights. To begin with, the and punished as a crime under the laws of both State
process of extradition does not involve the determination parties.' 65°
of the guilt or innocence of an accused.
The Philippines adheres to the double or dual criminality rule as
4. Compliance shall be in good faith. A country is bound enshrined in Section 3(a) of Philippine Extradition Law.
by pacta sunt servanda to comply in good faith with its
obligations under an extradition treaty. Q: Explain the principle of specialty in extradition.
5. There is an underlying risk of flight. Persons to be A: Magallona explained that it is "a principle by which the State
extradited are presumed to be flight risks, for extradition requesting extradition from another State is required to specify
hearings would not even begin, if only the accused were the crime as provided in the extradition treaty for which the
willing to submit to trial in the requesting country. fugitive or the accused is to be extradited and to be tried only for
351651
the offense specified in the extradition treaty.
Q: Is bail available to a prospective extraditee during the
pendency of extradition proceedings? Q: Extradition is the process pursuant to a treaty between
two State parties for the surrender by the requested State to
A: Yes. Just as in deportation proceedings, the right of a the custody of the requesting State of a fugitive criminal
prospective extraditee to apply for bail in this jurisdiction must residing in the former. However, extradition depends on the
be viewed in the light of the various treaty obligations of the application of two principles—the principle of specialty and
Philippines concerning respect for the promotion and protection 652
the dual criminality principle. Explain these principles.'
of human rights.16"
A: According to Magallona, the principle of specialty means
Q: What are the methods of determining the crimes that are that the State requesting extradition from another State is required
subject of an extradition treaty?1649 to specify the crime as provided in the extradition treaty for
which the fugitive or the accused is to be extradited and to be
A: According to Sarmiento, the methods of specifying grounds 653
tried only for the offense specified in the extradition treaty.'
for extradition are:
Magallona added that the principle of dual criminality requires
1. Listing of extraditable offenses: contracting States list that the crime for which extradition is sought must be recognized
specific crimes or categories thereof which will be made as a crime by both the requiring State and the State to which the
subject of an extradition treaty. fugitives or the accused has fled. I 654
2. Double or dual criminality rule: an offense is extraditable
Q: John tried to kill the President of Republic X (his country)
even without the need of specific listing if it is defined as part of a political take over, but his plan was thwarted.

1650 Ralph A. Sarmiento, Public International Law: Bar Reviewer 138-139 (2016 ed.).
1651 Merlin M. Magallona, Fundamentals of Public International Law, 573 (2005 ed.).
1648 Government of Hongkong Special Administrative Region v. 1652 BAR 2017.
Olalia, Jr., G.R. No.
153675, 19 April 2007. 1653 Merlin M. Magallona, Fundamentals of Public International Law, 572 (2005 ed.).
1649 BAR 2017. 1654 Id. at 578.
700 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 701
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John then fled to Republic A. There exists an extradition the requesting State and of state
treaty between Republic A and Republic X. If Republic X requested State
requests the extradition of John, can Republic A deny the
request? Why? State your reason fully. Benefit For the benefit of the For the benefit of the
requesting State expelling State
A: Republic A can refuse to extradite John, because his offense
is a political offense. Under Article 3(1) of the 1994 RP-US Basis Based on offense Based on causes arising
Extradition Treaty, extradition shall not be granted if the offense generally committed in in the local state
for which extradition is requested is a political offense. However, if the state of origin
the extradition treaty contains an attentat clause, Republic A can
Place of The wanted person There shall be deportation
extradite John, because under the attentat clause, the taking of
Transfer shall be returned to his of the undesirable alien
the life or attempt against the life of a head of state or that of the to a state other than his
state of origin
members of his family does not constitute a political offense and or her state of origin
is therefore extraditable.

Q: Explain the attentat clause in extradition treaties. Q: What is the procedure to be followed on extradition from
the Philippines?
A: This is a provision in an extradition treaty which stipulates
that an attempt against, or the taking of, the life of a head of state A: The procedure to be followed on extradition are as follows:
or the members of his/her family does not constitute a political
offense and therefore extraditable.'' 1. Request through diplomatic representative with:

Q: Distinguish extradition from deportation.1656 a. Decision of conviction;

A: Suarez outlined the differences between extradition and b. Criminal charge and warrant of arrest;
deportation:16" c. Recital of facts;
Extradition Deportation d. Text of applicable law designating the offense;
Origin Surrendering the wanted Removal of an undesirable e. Pertinent papers;
person by force from alien without a request
the requested State to from a third State 2. DFA forwards request to DOJ;
the requesting State 3. DOJ files petition of extradition with RTC;
Exercise May only be exercised A purely unilateral act 4. Upon receipt of a Petition of extradition and its supporting
pursuant to a treaty between and an act of sovereignty documents, the judge may study them and make as soon
as possible, prima facie finding whether
1655 Id.; Ralph A. Sarmiento, Public International Law: Ba• Reviewer, 142 (2016 ed.). a. They are sufficient in form and substance;
1656 BAR 1993.
1657 Rolando A. Suarez, Political Law Reviewer, 1080 (2011 ed.).
 702 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 703
ON POLITICAL LAW

b. They show compliance with the Extradition Treaty A: Magallona explained that "human rights are those inherent
and Law; and liberties, immunities, and benefits which, by accepted contemporary
values, all human beings should be able to claim `as of right' of
c. The person sought is extraditable. At his discretion,
the society in which they live." These are inalienable and
the judge may require the submission of further
indivisible rights which are recognized by the international
documentation or may personally examine the affiants community as a whole.' 66°
and witnesses of the petitioner. If, in spite of this
study and examination, no prima facie finding is Meanwhile, international law on human rights pertains to "the
possible, the petition may be dismissed at the law which deals with the protection of individuals and groups
discretion of the judge; against violations by governments of their internationally
guaranteed rights, and with the promotion of these rights."1661
5. Hearing (provide counsel de officio if necessary);
6. Appeal to CA within 10 days whose decision shall be Q: Briefly discuss the basic fundamental human rights
final and executory; obligations of the States.

7. Decision forward to DFA through DOJ; A: The UN Office of the High Commissioner on Human Rights
(UN OHCHR) in its brief International Human Rights Law
8. Individual placed at the disposal of the authorities of explained that under the international law on human rights,
requesting state with costs and expenses to be shouldered States assume obligations and duties to respect, to protect and to
by requesting state.' 658 fulfill human rights.

Q: Define asylum. 1. The obligation to respect means that States must refrain
from interfering with or curtailing the enjoyment of
A: According to Aust, alien seeking asylum is when a State human rights.
allows him to enter and remain in its territory even if his own
State objects. Notably however, aliens have no right of asylum. 2. The obligation to protect requires States to protect
It is merely the right of the State to grant it. Nonetheless, the individuals and groups against human rights abuses.
concept is wider than refugee status in that it can be granted even
3. The obligation to fulfill means that States must take positive
when the person has no fear of prosecution.16'
action to facilitate the enjoyment of basic human rights.
I. International Human Rights Law (The United Nations'
Q: Enumerate the categorization of human rights.
Universal Declaration of Human Rights)
A: They may be classified into:
Q: Explain the concept of human rights and international
law on human rights. 1. first generation of human rights, consisting of civil and
political rights;

1658 P.D. No. 1069 or otherwise known as "Philippine Extradition Law." 1660 Merlin M. Magallona, Fundamentals of Public International Law, 243 (2005 ed.).
1659 Anthony Aust, Modern Treaty Law and Practice, 187 (2013 ed.). 1661 Id.
 704 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 705
ON POLITICAL LAW

2. second generation of economic, social and cultural 4. The Convention on the Elimination of All Forms of
rights; and Discrimination against Women (CEDAW);
3. third generation rights, which refer to right to development, 5. The Convention against Torture and other Cruel, Inhuman
right to peace, and right to environment.1662 and Degrading Treatment or Punishment (CAT);
According to Magallona, "civil and political rights are now 6. The Convention on the Rights of the Child (CRC); and
embodied in the International Covenant on Civil and Political
Rights (ICCPR), and the economic, social and cultural rights in 7. The International Convention on the Protection of the
the International Covenant on Economic, Social and Cultural Rights of All Migrant Workers and Members of their
Rights (ICESCR)."1663 Families (ICRMW).

Q: What is the relevance of the International Bill of Human Q: What is the legal significance of the UDHR?
Rights? A: Magallona is of the opinion that the UDHR is not a treaty. It
A: The International Bill of Human Rights is a convenient has no obligatory character because it was adopted by the UN
designation of the three main instruments of human rights on the General Assembly as a Resolution. Nevertheless, some of its
international plane, which are the Universal Declaration of provisions either constitute general principles of law or represent
Human Rights; the International Covenant on Economic, Social elementary considerations of humanity. More important is its
and Cultural Rights; and the International Covenant on Civil and status as an authoritative guide and evidence of interpretation
Political Rights as explained by Magallona.1664 and application of the UN Charter.'
In the Philippines, the Supreme Court considered the UDHR as
Q: What are the seven-core international human rights
an authoritative listing of human rights which has become a
conventions under the direct auspices of the UN?
basic component of international customary law, indeed binding
A: Apart from the Universal Declaration of Human Rights all states and not only members of the United Nations.1666
(UDHR), the following are the seven-core international human
rights conventions: Q: How does the UDHR compare with the ICCPR and the
ICESCR in terms of binding effect?
1. The International Convention on the Elimination of All
forms of Racial Discrimination (CERD); A: UDHR is not a treaty but a resolution of the UN General
Assembly, and as such it has no obligatory character except
2. The ICCPR and its two Optional Protocols; insofar as it may be considered as part of customary law. On the
contrary, the two Covenants are international conventions which
3. The International Covenant on Economic, Social and are binding on their respective States Parties.1667
Cultural Rights (ICESCR);

'662 Id., at 250. 1665 Id., at 255-257.

1663 Id. 1666 Republic v. Sandiganbayan, G.R. No. 104768, 21 July 2003.
1664 Id., at 251. 1667 Merlin M. Magallona, Fundamentals of Public International Law, 263 (2005 ed.).
 706 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 707
ON POLITICAL LAW

Q: Describe the general principles espoused by UDHR and the life of the nation, according to Magallona.1673 The following
its structure. are the requisites for the successful invocation of the clause:
A: The UDHR is said to be based on three premises: "firstly, all 1. There must be a public emergency which threatens the
human beings are born free and equal in dignity and rights;'668 life of the nation;
secondly, everyone is entitled to a social and international order
in which the rights and freedoms set forth in the Declaration may 2. Such public emergency must be officially proclaimed;
be fully realized;' 669 and thirdly, those rights apply to everyone
3. Derogation is allowed only to the extent strictly required
without any form of discrimination whatsoever."167°
by the exigencies of the situation;
The UDHR embodies "both the first and second generations of
4. The measures taken should not be inconsistent with their
human rights. It provides for civil and political rights as well as
other obligations under international law; and
economic, social, and cultural rights considering that it was drafted as
a common standard of achievement for all people and nations."1671 5. The measures may not involve discrimination solely on
the ground of race, color, sex, language, religion or
Q: Are there limitations to the exercise of rights under the UDHR? social origin.' 674
A: Yes. In the exercise of his rights and freedoms, everyone
shall be subject only to such limitations as are determined by law Q: Enumerate the non-derogable rights under the ICCPR.
solely for the purpose of securing due recognition and respect for A: Article 4 of the ICCPR provides that no derogation from the
the rights and freedoms of others and of meeting the just following established rights may be permitted:
requirements of morality, public order and the general welfare in
a democratic society.1672 These rights and freedoms may in no 1. right to life;'675
case be exercised contrary for the purposes and principles of the UN. 2. freedom from torture and other inhuman or degrading
treatment or punishment;1676
Q: Explain the derogation clause under the ICCPR and
discuss its requisites. 3. freedom from slavery or servitude;1677
A: A derogation clause is a provision in a human rights treaty 4. freedom from imprisonment merely for inability to
which permits a State party to contract out of its obligation under fulfill a contractual obligation;1678
the treaty in time of war or other public emergency threatening
5. freedom from post facto legislation and other judicial
guarantees;'679

1573 Merlin M. Magallona, Fundamentals of Public International Law, 269 (2005 ed.).
1668 Universal Declaration of Human Rights, hereinafter "UDHR", Art. I. 1674 International Covenant on Civil and Political Rights, hereinafter "ICCPR", Art. 4(1).
1669 UDHR, Art. 28. 1675 ICCPR, Art. 6.
1670 Merlin M. Magallona, Fundamentals of Public International Law, 260 (2005 ed.). 1676 ICCPR, Art. 7.
1671 Id. 1677 ICCPR, Arts. 8(1), 8(2).
1672 UDHR, Arts. 29(2) and (3). '678 ICCPR, Art. 11.
 708 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 709
ON POLITICAL LAW

6. right to recognition before the law;1680 and Q: What is Freedom from Torturer"
7. freedom of thought, conscience and religion. 1681 A: Freedom from torture is non-derogable both during peacetime
and in a situation of armed conflict. Under Article 4 of the
Q: Wilson, a British National, was unjustly accused of Rape, ICCPR, the State Parties may take measures in derogation of
convicted and imprisoned but released by virtue of an their obligations under this Covenant in time of public emergency.
acquittal. He was compensated P40,000 by the DOJ pursuant But this derogation clause does not apply to prohibition against
to RA 7309, An Act Creating a Board of Claims Under The torture, pursuant to Article 4(2) of the ICCPR. Hence, no
Department Of Justice For Victims Of Unjust Imprisonment derogation may be made in regard to torture.
Or Detention And Victims Of Violent Crimes. Wilson sought
additional compensation from the UN Human Rights Committee Q: Discuss the scope of the two Optional Protocols to the
established under the ICCPR. The Committee issued a view ICCPR.
that the Philippines violated the ICCPR and must compensate
Wilson. He then filed a petition for mandamus to compel the A: The first Optional Protocol established the Human Rights
DOJ to implement the View issued by the Human Rights Committee. Committee with the power to receive and consider communications
He argues that by virtue of the doctrine of transformation, from individuals claiming to be victims of violations of any of
the Philippines is in breach of an international obligation the rights set forth in the Covenant. The second Optional Protocol
1684
since any View issued by the Committee constitutes part of has for its purpose the abolition of the death penalty.
international law and that the Philippines is obligated to
Q: What is the principle of self-determination under the ICCPR?
enforce the same. Is Wilson correct?
A: All people have the right to self-determination. By virtue of
A: No. Other than R.A. No. 7309, under which Wilson had
that right, they freely determine their political status and freely
already been granted compensation, there is no other law or
pursue their economic, social and cultural development. Further,
regulation that forms the basis of such ministerial right that the
for their own ends, they may freely dispose of their natural
government is impelled to grant. There must be an act more than
wealth and resources without prejudice to any obligations arising
ratification to make a treaty applicable in Philippine jurisdiction.
out of international economic co-operation, based upon the
To be sure, what was ratified were the ICCPR and the Optional
principle of mutual benefit, and international law.'"
Protocol, nowhere in the instrument does it say that the View of
the Committee forms part of the treaty.1682 Q: In case of a violation by another State party of the
provisions of the ICCPR, what is the remedy of the injured
State party?
A: If a State party violates the provisions of the ICCPR, the
offended State party may, by written communication, bring the

1679
ICCPR, Art. 15.
1680 ICCPR, Art. 16. 1683 BAR 2009.
1681 ICCPR, Art. 18. 1684 Echegaray v. Secretary of Justice, G.R. No. 132601, 12 October 1998.
1682 Wilson v. Ermita, G.R. No. 189220, 07 December 2016. 1685 ICCPR, Art. 1.
 710 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 711
ON POLITICAL LAW

matter to the attention of the violating State party. If after six UN Economic and Social Council which will then undertake a
months there is still no resolution of the matter, either State shall review of the reports.
have the right to refer the matter to the Committee, by notice
given to the Committee and to the other State.'6s6 Q: Briefly outline the remedial measures available in case of
commission of Genocide, Torture, and Discrimination (including
Q: Explain the Exhaustion of Local Remedies Rule. racial discrimination and discrimination against women):
A: According to Shaw, it is "a method of permitting states to A:
solve their own internal problems in accordance with their own
constitutional procedures before accepted international mechanisms 1. Genocide: persons charged with genocide and related
can be invoked and is well established in general international acts shall be tried by a competent tribunal of the State in
l aw :51687 the territory of which the act was committed," or by "such
international penal tribunal as may have jurisdiction with
Q: The Hezbollah, an armed militia in Lebanon, was implicated respect to those Contracting Parties which shall have
in the torture and rape of several Filipina OFW's. accepted its jurisdiction.' 6ss

a) What remedies are available to the victims? 2. Torture: any State Party in whose territory a person
alleged to have committed any offence penalized under
A: Under International Law, the victims must first exhaust all the Convention against Torture and other Cruel, Inhumane
local remedies in Lebanon. If this is unsuccessful, the Philippine and Degrading Treatment or Punishment is present shall
government may take up the cause of the victims as it affects its take him into custody or take other legal measures to
national interest. ensure his presence, subject to the rule on extradition.'
b) May the State of Lebanon be held liable under 3. Discrimination (including racial discrimination and
International Law? discrimination against women): States Parties shall
A: The State of Lebanon cannot be held liable unless it can be assure to everyone within their jurisdiction effective
shown that the acts complained of can be attributed to Lebanon protection and remedies, through the competent national
and that it amounts to a breach of its international obligation. tribunals and other State institutions, against any acts of
racial discrimination,1690 and shall implement judicial,
Q: Does the ICESCR provide a similar complaint system? administrative or other measures to give effect to the
provisions of the Convention on the Elimination of All
A: No. Nonetheless, Article 16.1 of the ICESCR requires States Forms of Discrimination against Women."91
Parties to submit with the UN Secretary-General "reports on the
measures which they have adopted and the progress made in
achieving the observance of the rights recognized" under the
Covenant. The UN Secretary General transmits the reports to the 1688 Convention on the Prevention and Punishment of the Crime of Genocide, Art. VI.
1689 Convention against Torture and other Cruel, Inhuman and Degrading Treatment
or Punishment, Art. 6(1).
1690 International Convention on the Elimination of All Forms of Racial Discrimination,
1686 ICCPR, Art. 41. Art. 6.
1687 Malcolm N. Shaw, International Law, 215 (8th ed., 2017). 1691 Convention on the Elimination of All Forms of Discrimination against Women, Art. 18.
712 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 713
ON POLITICAL LAW

Q: Explain progressive realization as a trend in international law. to the wounded, to prisoners of war, to civilians) and, furthermore,
humanitarian law applies only in times of armed conflict. On the
A: As part of the functions of the UNGA, it shall initiate studies
other hand, `human rights' and `humanitarian law' regulate, ratione
and make recommendations for the purpose of promoting
materiae, similar rights at least insofar that they all intend to
international co-operation in the political field and encouraging the increase the protection of individuals, alleviate pain and suffering
progressive development of international law and its 696
and secure the minimum standard of persons in various situations.'
codification.1692 This is a continuing process known as
"progressive realization". Q: The dictatorial regime of President A of the Republic of
Gordon was toppled by a combined force led by Gen. Abe,
J. International Humanitarian Law (R.A. No. 9851)
former royal guards and the secessionist Gordon People's Army.
Q: Explain the concept of international humanitarian law. The new government constituted a Truth and Reconciliation
Commission to look into the serious crimes committed under
A: International humanitarian law (IHL) is the body of international President A's regime. After the hearings, the Commission
law that regulates the conduct of armed conflicts, whether of an recommended that an amnesty law be passed to cover even
international or non-international character. This body of law those involved in mass killings of members of indigenous
seeks to limit the effects of conflict on individuals. The 1949 groups who opposed President A. International human rights
Geneva Conventions and its Additional Protocols are the main groups argued that the proposed amnesty law is contrary to
instruments that govern IHL. `693 international law. Decide with reasons.1697
IHL pertains to the law of war or the laws of armed conflict. It A: The proposed amnesty law is contrary to international law.
seeks to protect the victims of armed conflicts (such as the The mass killings of members of indigenous groups constitute
wounded and the sick, prisoners of war, and civilians) and tries genocide under Article II(a), Convention for the Prevention and
to constrain the conduct of military operations in a humanitarian Punishment of the Crime of Genocide. The proposed amnesty
fashion.1694 According to Bernas, it provides for instances when law is against international law because it is incompatible with,
the use of armed force is justifiable (jus ad bellum) and it or in violation of the international obligation under Article IV of
regulates the conduct of armed conflict (jus in bello).'695 this Convention that persons committing genocide shall be punished,
whether they are constitutionally responsible rulers, public officials
Q: Distinguish international humanitarian law from international or private individuals.
human rights law.
The Contracting Parties confirm that genocide, whether committed
A: The two sets of rules certainly have a different history and in time of peace or in time of war, is a crime under international
often a different field of application, both ratione personae and law which they undertake to prevent and to punish.
ratione temporis. Human rights thus apply to all people and
humanitarian law applies to certain groups of persons (for example,

1692 UN Charter, Article 13(1)(a).

1693 Ocampo v. Abando, O.R. Nos. 176830, 185587, 185636 & 190005, 11 February 2014.
1694 Malcolm N. Shaw, International Law, 856 (8th ed., 2017). 1696 Id.
1695 Joaquin G. Bailin, SJ., Introduction to Public International Law, 307 (2009 ed.). 1697 BAR 2009.
 714 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 715
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Q: Describe the extent of the jurisdiction of the International Q: What is the prevailing regime anent the use of force in
Criminal Court (ICC). international law?
A: The ICC jurisdiction shall be limited to the most serious A: Until the advent of the UN Charter, jus ad bellum (i.e., early
crimes of concern to the international community as a whole, laws of war; the right to resort to war) continued to be the
such as crime of genocide, crimes against humanity, war crimes, prevailing legal regime as integral to state sovereignty, limited
and crime of aggression.1698 Its jurisdiction has been described as only by the obligations of parties to international conventions
complementary to national criminal jurisdiction.1699 For the exercise inter se. The shift of the legal regime came with the UN Charter
of its functions, the ICC possesses international personality and on the basis of which the settlement of international disputes as a
may exercise its functions and power on the territory of any State legal obligation has developed into general or customary international
Party and, by special agreement, on the territory of any other State.170° law as an integral component of the prohibition against the threat
or use of force under Article 2(4) of the UN Charter. In itself,
As a rule, a person shall not be criminally responsible under this 704
this prohibition is concededly customary international law.'
statute unless the conduct in question constitutes, at the time it
Hence, States have now been adhering to international humanitarian
takes place, a crime within the jurisdiction of the court.1701 This
law or jus in bello, which regulates the methods of warfare and
provision should be understood that it takes place after the
use of force.
Statute has entered into force.
Q: What is meant by force?
Q: Compare and contrast the jurisdiction of the International
Criminal Court and International Court of Justice.1702 A: The concept of force may contemplate both armed force,
otherwise known as aggression, and economic force. Aggression
A: The jurisdiction of the International Court of Justice pertains
is the use of armed force by a State against the sovereignty,
to international responsibility in the concept of civil liability, while
territorial integrity or political independence of another State.1" 5
that of the International Criminal Court pertains to criminal liability.
Shaw explained that for one, the 1970 Declaration on Principles
While States are the subject of law in international responsibility
of International Law recalled the duty of states to refrain from
under the jurisdiction of the International Court of Justice, the
military, political, economic or any other form of coercion aimed
criminal liability within the jurisdiction of the International
against the political independence or territorial integrity of any
Criminal Court pertains to individual natural person.1703
state, and for another, the Charter of Economic Rights and
Duties of States, approved by the UNGA in 1974, particularly
specified that no state may use or encourage the use of
economic, political or any other type of measures to coerce
another state in order to obtain from it the subordination of the
exercise of its sovereign rights.17°6
1698 Rome Statute of the International Criminal Court, hereinafter "Rome Statute", Art. 5.
1699 Rome Statute, Art. 1.
1700 Rome Statute, Art. 4.
1701
Rome Statute, Art. 22(1). 1704 Merlin M. Magallona, Fundamentals of Public International Law, 505 (2005 ed.),
1702 BAR 2009. 1708 UNGA Resolution 3314, 14 December 1974.
1706
1703 ICJ Statute, Art. 34(i); Rome Statute, Arts. 25, 27. Malcolm N. Shaw, International Law, 856 (8th ed., 2017).
716 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 717
ON POLITICAL LAW

Q: What are the categories of force and briefly discuss each. Q: Explain the concept of collective self-defence.
A: These are reprisal, retortion, and self-defense. A: In the Nicaragua v. U.S. case, the Court stressed that the
right to collective self-defence was established in customary law
1. Reprisal: these are acts of self-help by the injured State,
but added that the exercise of that right depended upon both a
or acts in retaliation for acts contrary to international law
prior declaration by the state concerned that it was the victim of an
on the part of the offending State, which have remained
armed attack and a request by the victim state for assistance.110
unredressed after a demand for amends, for purposes of
compelling the offending State to make reparation for Q: A terrorist group called the Emerald Brigade is based in
the breach of international obligation. In consequence of the State of Asyaland. The government of Asyaland does not
such measures, the observance of the certain rules of support the terrorist group, but being a poor country, is
international law is temporarily suspended in the relations powerless to stop it.
between the two States.107
The Emerald Brigade launched an attack on the Philippines,
2. Retortion: this is the adoption by one state of an firing two missiles that killed thousands of Filipinos. It then
unfriendly and harmful act, which is nevertheless lawful, warned that more attacks were forthcoming. Through diplomatic
as a method of retaliation against the injurious legal channels, the Philippines demanded that Asyaland stop the
activities of another state."08 Emerald Brigade; otherwise, it will do whatever is necessary
3. Self-defence: this is an inherent right of the state to defend itself. Receiving reliable intelligence reports of
another imminent attack by the Emerald Brigade, and it
recognized under customary international law and Article
appearing that Asyaland was incapable of preventing the
51 of the UN Charter and is considered an exception to
assault, the Philippines sent a crack commando team to
the prohibition on the use of force, which a state may
Asyaland. The team stayed only for a few hours in Asyaland,
invoke in cases where it becomes a victim of an armed
succeeded in killing the leaders and most of the members of
attack. For the successful invocation of self-defence, the
Caroline Case laid down two conditions: (1) there had to the Emerald Brigade, then immediately returned to the
Philippines.
exist a necessity of self-defence, instant, overwhelming,
leaving no choice of means, and no moment for a) Was the Philippine action justified under the international
deliberation, usually by becoming a victim of an armed law principle of "self-defense"?""
attack; and (2) the action taken in pursuance of it must
not be unreasonable or excessive, and must be A: The Philippine action cannot be justified as self-defense.
proportional to the injury sustained."09 Self-defense is an act of State by reason of an armed attack by
another State. The acts of terrorism in this case were acts of a
private group and cannot be attributed to Asyaland, which does
not support the Emerald Brigade. Article 51 of the UN Charter

1710
1707 Merlin M. Magallona, Fundamentals of Public International Law, 71-72 (2005 ed.). Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
17°8 Malcolm N. Shaw, International Law, 859 (8th ed., 2017). U.S.), Judgment, ICJ Reports, 14 (1986).
' 7°9 Id., at 861-863. 17' I BAR 2009.
718 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 719
ON POLITICAL LAW

has no applicability, because self defense in Article 51 Q: What is an armed conflict?

contemplates a response to a legitimate armed attack by a State
against another State. The attack by the Emerald Brigade is an A: Section 3(c) of Republic Act No. 9851, otherwise known as
attack by a private group without authority or as an organ of the "Philippine Act on Crimes Against International Humanitarian
Asyaland. Law, Genocide, and Other Crimes Against Humanity", defines
armed conflict as a situation where there is a resort to armed force
b) As a consequence of the foregoing incident, Asyaland between States on protracted armed violence between governmental
charges the Philippines with violation of Article 2.4 of the authorities and organized armed groups or between such groups
UN Charter that prohibits "the threat or use of force within a State.1712
against the territorial integrity or political independence
of any State." The Philippines counters that its commando Q: Briefly discuss the two categories of armed conflicts.
team neither took any territory nor interfered in the
A: Armed conflict may be international, that is, between two
political processes of Asyaland. Which contention is
(2) or more States, including belligerent occupation, across or
correct? Reasons.
transcending borders; or non-international, that is, between
A: The contention of Asyaland is correct. The Philippines violated governmental authorities and organized armed groups or between
Article 2(4) of the UN Charter, which prohibits States from the such groups within the territory of a State. It does not cover internal
threat or use of force against the territorial integrity of any State. disturbances or tensions such as riots, isolated and sporadic acts
1713
of violence or other acts of a similar nature.
c) Assume that the commando team captured a member of
the Emerald Brigade and brought him back to the Q: Are there any instances not covered by an Armed Conflict?
Philippines. The Philippine Government insists that a
special international tribunal should try the terrorist. On A: Yes. Armed Conflict does not include internal disturbances
the other hand, the terrorist argues that terrorism is not or tensions such as: 1) riots; 2) isolated sporadic acts of violence;
an international crime and, therefore, the municipal laws 3) other acts of a similar nature.114
of the Philippines, which recognize access of the accused
Q: Define war of national liberation.
to constitutional rights, should apply. Decide with reasons.
A: A war of national liberation is a conflict in which people are
A: The terrorist should be tried in the Philippines. Section 58 of
fighting against colonial domination and alien occupation and
Republic Act No. 9372, otherwise known as the "Human
against racist regimes in the exercise of their right of self-
Security Act," provides for its extraterritorial application to
determination, as enshrined in the UN Charter and the
individual persons who, although outside the territorial limits of
Declaration on Principles of International Law concerning Friendly
the Philippines, commit an act of terrorism directly against
Relations and Co-operation among States in accordance with the
Filipino citizens where their citizenship was a factor in the
commission of the crime.

1712 Prosecutor v. Tadic. ICTY Case No. IT-94-1-AR72 (1995).

1713
R.A. No. 9851, Sec. 3(c); Prosecutor v. Tadic, ICTY Case No. IT 94-1-AR72
1714 R.A. No. 9851, Sec. 3.
 720 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 721
ON POLITICAL LAW

Charter of the United Nations.l'15 Magallona characterized this as to those objects which by their nature, location, purpose or use
an international armed conflict.116 make an effective contribution to military action and whose total
or partial destruction, capture or neutralization, in the circumstances
Q: What is the Martens Clause? ruling at the time, offers a definite military advantage.
A: Article 1(2) of the Additional Protocol I of 1977, otherwise In case of doubt whether an object which is normally dedicated
known as the "Martens Clause", essentially provides that in to civilian purposes, such as a place of worship, a house or other
cases not covered by this Protocol I or by any other international dwelling or a school, is being used to make an effective contribution
agreements, civilians and combatants remain under the protection to military action, it shall be presumed not to be so used.1721
and authority of the principles of international law derived from
established custom, from the principles of humanity and from the Q: Explain the principle of distinction or the duty of State
dictates of public conscience.' 717 parties to distinguish between civilian and combatant populations.

Q: Who are civilians? Who are combatants? A: In order to ensure respect for and protection of the civilian
population and civilian objects, the Parties to the conflict shall at
A: Civilians are all those who are not identified as combatants. all times distinguish between the civilian population and combatants
In case of doubt whether a person is a civilian, that person shall and between civilian objects and military objectives and accordingly
be considered to be a civilian.118 Combatants on the other hand shall direct their operations only against military objectives.1722
are those individuals belonging to the armed forces of a Party to
a conflict who participate directly in hostilities." This is not to say that states have unbridled discretion in the
conduct of their operations against military objectives. They must
Q: Define levee en masse. still adhere to the well-established principles of proportionality
in their use of force and of necessity.
A: According to Cruz, levee en masse pertain to inhabitants of
unoccupied territory, who on approach of the enemy, spontaneously Q: Who are the protected persons?
take up arms to resist the invading troops without having had the
time to organize themselves provided only that they carry arms A: Protected persons are those who enjoy or are entitled to
openly and observe the laws and customs of war. 172o protection under the Geneva Conventions of 1949, such as:

Q: What are civilian objects? 1. the wounded, sick, and shipwrecked (under the First and
Second Geneva Conventions);
A: Civilian objects are all objects which are not military objectives.
In so far as objects are concerned, military objectives are limited 2. prisoners of war (under the Third Convention); and
3. civilians (under the Fourth Convention).
For purposes of protection, civilians are classified as:
1715 Additional Protocol I, Art. 1(4).
1716
Merlin M. Magallona, Fundamentals of Public International Law, 307 (2005 ed.).
'717 Id., at 300.
1718 Additional Protocol I, Art. 50(1).
1719 Additional Protocol I, Art. 43. 1721 Additional Protocol I, Art. 52.
1720 Carlo L. Cruz and Isagani A. Cruz, International Law Reviewer, 298 (2020 ed.). 1722 Additional Protocol I, Art. 48.
 722 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 723
ON POLITICAL LAW

1. Civilians who are victims of conflict in countries involved with the least possible delay, the medical care and
(under the Fourth Geneva Convention); condition;'724
attention required by their
2. Civilians in territories of the enemy; 2. Prisoners of war: those who take part in hostilities and
falls into the power of an adverse party, including those
3. Civilians in occupied territories; and
who accompany the armed forces without being members
4. Civilian intemees.1723 thereof, and those identified as hors de combat, shall be
evacuated, as soon as possible after their capture, to
Section 3(q) of Republic Act No. 9851 adds the following camps situated in an area far enough from the combat
individuals in the list of protected persons during armed conflicts: zone for them to be out of danger. They are subject to
the laws of the state detaining them;1725
1. A person who, before the beginning of hostilities, was
considered a stateless person or refugee under the relevant 3. Civilians: the civilian population as such, as well as
international instruments accepted by the parties to the individual civilians, shall not be the object of attack,
conflict concerned or under the national legislation of 1726
whether discriminate or indiscriminate.
the state of refuge or state of residence;
Q: Who are hors de combat persons?
2. A member of the medical personnel assigned exclusively
to medical purposes or to the administration of medical A: Article 41 of the Additional Protocol I of 1977, as adopted in
units or to the operation of or administration of medical Section 3(k) of Republic Act No. 9851, states that: provided that
transports; or in any of these cases he abstains from any hostile act and does
not attempt to escape, a person is hors de combat if:
3. A member of the religious personnel who is exclusively
engaged in the work of their ministry and attached to the 1. he is in the power of an adverse Party;
armed forces of a party to the conflict, its medical units
or medical transports, or non-denominational, noncombatant 2. he clearly expresses an intention to surrender; or
military personnel carrying out functions similar to 3. he has been rendered unconscious or is otherwise
religious personnel. incapacitated by wounds or sickness, and therefore is
incapable of defending himself.
Q: Briefly discuss the extent of protection afforded to each
of the protected persons. A person who is recognized or who, in the circumstances, should
be recognized to be hors de combat shall not be made the object
A:
of attack.1727
1. The wounded, sick, and shipwrecked: shall be respected
and protected in all circumstances, shall be treated humanely
and shall receive, to the fullest extent practicable and
1724 Additional Protocol I, Art. 10.
1725 Third Geneva Convention, Arts. 25 and 82.
1726 Additional Protocol I, Art. 51.
1723 Merlin M. Magallona, Fundamentals of Public International Law, 302 (2005 ed.). 1727 Additional Protocol I, Art. 41.
724 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 725
ON POLITICAL LAW

Q: Syrian Army soldiers in battle shed their uniforms, A: Yes. Under the Geneva Conventions, it is prohibited to employ
concealed their weapons, put on civilian clothes, and, mixed weapons or methods of warfare of a nature to cause unnecessary
with the civilian, succeeded in infiltrating across the enemy losses or excessive suffering. IHL likewise prohibits
lines in numbers, suddenly produced their hidden weapons indiscriminate attacks. Indiscriminate attacks strike military
and attacked the enemy at the rear. When caught prisoners, objectives and civilians or civilian objects without distinction.
will they be entitled to treatment as prisoners of war? May They are not directed at a specific military objective or they
they be shot without trial? employ a method or means of combat which cannot be directed
at a specific military objective.128
A: No, the Syrian Army soldiers will not be entitled to
treatment as prisoners of war. While as a general rule, violations Q: A newspaper correspondent following an army was caught
of the rules of International Law applicable in armed conflict by the enemy while trying to send reports of a battle to his
shall not deprive combatants of their right to be combatants or, if home office.
they fall into the power of an adverse Party, of their right to be a
prisoners of war, as an exception however, combatants who a) Is he entitled to treatment as a prisoner of war or
failed to distinguish themselves from the civilian population while may he be treated as a spy?
they are engaged in an attack or in a military operation preparatory
A: He is entitled to treatment as a prisoner of war. Under Article 4
to an attack will not be entitled to treatment as prisoners of war
(A)(4) of the Third Geneva Convention, persons who accompany
when they fall in enemy hands.
the armed forces without actually being members thereof, such
However, the soldiers may not be shot without trial. Their as war correspondents, shall be entitled to prisoner-of-war status
failure to distinguish themselves from civilians during the attack when they fall in enemy hands.
and to carry their weapons openly results only in the forfeiture of
b) Are spies entitled to prisoner-of-war status when captured
their right to be prisoners of war, but they would still be given
by the enemy?
protections equivalent in all respects to those accorded to prisoners
of war under the Third Geneva Convention and by the Additional A: No. Any member of the armed forces of a Party to the conflict
Protocol I. These protections include those accorded to prisoners who falls into the power of an adverse Party while engaging in
of war by the Third Geneva Convention in the case where such a espionage shall not have the right to the status of prisoner of war
person is tried and punished for any offences he has committed. and may be treated as a spy.
Q: The US government introduced Lethal Autonomous Weapons Q: Explain the status of neutrality.
Systems (LAWS) which uses drones and robots to launch air
strikes against enemy targets in war-torn countries. These A: Neutrality is "the legal status of a State in times of war, by
drones and robots cannot distinguish between military and which it adopts impartiality in relation to the belligerents with
civilians. They only follow specific orders formulated thru their recognition."129 Correspondingly, the following rules must
algorithms and computer programs. Will the use of these be observed:
unmanned drones and robots constitute a violation of the
Geneva Convention or any principle of international law?
1728 Additional Protocol I, Art. 51(2).
1729 Merlin M. Magallona, Fundamentals of Public International Law, 308 (2005 ed.).
726 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 727
ON POLITICAL LAW

1. The territory of neutral Powers is inviolable;173° Q: What is a prize court?

2. Belligerents are forbidden to move troops or munitions A: A prize court is a domestic tribunal of a belligerent State that
of war and supplies across the territory of a neutral determines the legality of the capture by a belligerent of enemy
power;1" 1 and or neutral merchant vessels and of their liability to confiscation.
Although its authority and jurisdiction are derived from national
3. A neutral power is forbidden to allow belligerents to use law, the rules it applies are rules of International Law except
its territory for moving troops, establishing communication insofar as special national legislation might have prescribed a
facilities or forming corps of combatant.' 136
particular interpretation of these rules.
Nonetheless, the status of neutrality does not bar the operation of
Q: The United States of America and other European countries
international humanitarian law.1" 3
have openly supplied weapons to Ukraine — which is currently
Q: When is neutrality terminated? in a state of war with Russia. Is this a violation of the
Principle of Neutrality?
A: Neutrality is terminated upon the conclusion of a treaty of
peace between the belligerents, or when the neutral state itself A: No. When the states joined together to outlaw war in 1928
joins the war.' and reaffirm that commitment in the UN Charter in 1945, they
created a New World Order in which might is no longer right
Q: Who are neutrals? and in which states can provide weapons and other support to a
state unjustly attacked so that it can defend itself. The end of
A: Neutrals are nationals of a State which are not taking part in impartiality means that states are permitted to supply weapons or
the war. other support to Ukraine. Doing so violates no legal duty of
neutrality. States would become parties to the international
Q: What is a neutralized state?
armed conflict between Russia and Ukraine if, and only if, they
A: According to Fenwick, neutralized states are states upon resort to armed force against Russia. Indeed, providing assistance to
which the status of permanent neutrality in all future wars was Ukraine supports the international legal order by allowing Ukraine
formally imposed by a group of great powers. The act of to defend itself against a war of aggression.
neutralization generally took the form of a treaty between the
parties and was, as a rule, accompanied by a guarantee of the Q: Russia has recently launched a series of devastating missile
independence and territorial integrity of the neutralized State.' attacks at Ukraine's power infrastructure, which have hit at
least half of its thermal power generation and up to 40% of
the entire electricity generating and distribution system. Is
this considered a war crime? Explain.
1730 Hague Convention (V) of 1907 Respecting the Rights and Duties of Neutral
Powers, hereinafter "Hague Convention (V)", Art. 1. A: An attack against infrastructure used by civilians might be a
I"' Hague Convention (V), Art. 2.
war crime, but not necessarily. The Law on Armed Conflict
1732 Hague Convention (V), Arts. 3 and 4.
173i Merlin M. Magallona, Fundamentals of Public International Law, 308-309
(2005 ed.).
'734 Antonio Eduardo B. Nachura, Outline Reviewer in Political Law, 275 (2014 ed.).
1735 Charles G. Fenwick, International Law, 107 (1952 ed.). 1736 Id.
728 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 729
ON POLITICAL LAW

(LOAC) does permit attacks on infrastructure but only if certain a. In case of an international armed conflict, grave
prerequisites are observed. The most primary of all the LOAC breaches of the Geneva Conventions of 12 August 1949,
rules is the Principle of Distinction, that is, the prohibition namely, any of the following acts against persons or
ondirecting attacks against civilians or civilian objects. But an property protected under the provisions of the relevant
object may be civilian-owned and used by civilians yet still be Geneva Convention;
directly attacked as a lawful target under certain circumstances.
a. Willful killing;
First, the object must be shown to be a military objective. Military
objectives, insofar as objects are concerned, include "any object b. Torture or inhuman treatment, including
which by its nature, location, purpose or use makes an effective biological experiments;
contribution to military action and whose total or partial destruction, c. Willfully causing great suffering, or serious
capture or neutralization, in the circumstances ruling at the time, injury to body or health;
offers a definite military advantage."
d. Extensive destruction and appropriation of
Second, electric power stations are generally recognized to be of property not justified by military necessity
sufficient importance to a State's capacity to meet its wartime and carried out unlawfully and want only;
needs of communication, transport, and industry so as usually to
qualify as military objectives during armed conflicts. Indeed, attacks e. Willfully depriving a prisoner of war or
on electrical systems have long been a part of modern war. other protected person of the rights of fair
and regular trial;
To justify the attacks under LOAC, the following questions must
be answered in the affirmative — Is there evidence that Ukraine's f. Arbitrary deportation or forcible transfer of
electrical system in this instance is of sufficient importance to population or unlawful confinement;
qualify as a military objective? Does it make "an effective
contribution to military action"? Would its "partial destruction g. Taking of hostages;
neutralization" offer "a definite military advantage"? h. Compelling a prisoner, a prisoner of war or
other protected person to serve in the forces
1. War Crimes, Genocide, and Other Crimes against Humanity of a hostile power; and
— Sections 4-6
i. Unjustifiable delay in the repatriation of
Q: Enumerate the crimes punishable under R.A. No. 9851. prisoners of war or other protected persons.
A: Crimes punishable under R.A. No. 9851, otherwise known as b. In case of a non-international armed conflict, serious
"Philippine Act on Crimes Against International Humanitarian Law, violations of common Article 3 to the four (4) of
Genocide, and Other Crimes Against Humanity," are grouped as Geneva Conventions of 12 August 1949, namely,
follows: any of the following acts committed against persons
1. War Crimes under Section 4, which include: taking no active part in the hostilities, including
members of the armed forces who have laid down
730 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 731
ON POLITICAL LAW

their arms and those placed hors de combat by the Charter of the United Nations, as they are
sickness, wounds, detention or any other cause; entitled to the protection given to civilians
or civilian objects under the international
i. Violence to life and person, in particular, law of armed conflict;
willful killings, mutilation, cruel treatment
and torture; v. Launching an attack in the knowledge that
such attack will cause incidental loss of life
ii. Committing outrages upon personal dignity, or injury to civilians or damage to civilian
in particular, humiliating and degrading objects or widespread, long-term and severe
treatment; damage to the natural environment which
iii. Taking of hostages; and would be excessive in relation to the concrete
and direct military advantage anticipated;
iv. The passing of sentences and the carrying
out of executions without previous judgment vi. Launching an attack against works or
pronounced by a regularly constituted court, installations containing dangerous forces in
affording all judicial guarantees which are the knowledge that such attack will cause
generally recognized as indispensable. excessive loss of life, injury to civilians or
damage to civilian objects, and causing death
c. Other serious violations of the laws and customs or serious injury to body or health;
applicable in armed conflict, within the established
framework of international law. vii. Attacking or bombarding, by whatever means,
towns, villages, dwellings or buildings which
i. Internationally directing attacks against the are undefended and which are not military
civilian population as such or against individual objectives, or making non-defended localities
civilians not taking direct part in hostilities; or demilitarized zones the object of attack;
ii. Intentionally directing attacks against civilian viii. Killing or wounding a person in the knowledge
objects, that is, object which are not military that he/she is hors de combat, including a
objectives; combatant who, having laid down his/her
arms or no longer having means of defense,
iii. Intentionally directing attacks against buildings,
has surrendered at discretion;
material, medical units and transport, and
personnel using the distinctive emblems of ix. Making improper use of a flag of truce, of
the Geneva Conventions or Additional Protocol the flag or the military insignia and uniform
III in conformity with intentional law; of the enemy or of the United Nations, as
well as of the distinctive emblems of the
iv. Intentionally directing attacks against personnel,
Geneva Conventions or other protective
installations, material, units or vehicles
signs under International Humanitarian Law,
involved in a humanitarian assistance or
peacekeeping mission in accordance with
732 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 733
ON POLITICAL LAW

resulting in death, serious personal injury xvii. Transferring, directly or indirectly, by the
or capture; occupying power of parts of its own civilian
population into the territory it occupies, or
x. Intentionally directing attacks against buildings the deportation or transfer of all or parts of
dedicated to religion, education, art, science the population of the occupied territory
or charitable purposes, historic monuments, within or outside this territory;
hospitals and places where the sick and
wounded are collected, provided they are not xviii. Committing outrages upon personal dignity,
military objectives. In case of doubt whether in particular, humiliating and degrading
such building or place has been used to make treatments;
an effective contribution to military action,
it shall be presumed not to be so used; xix. Committing rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization,
xi. Subjecting persons who are in the power of or any other form of sexual violence also
an adverse party to physical mutilation or to constituting a grave breach of the Geneva
medical or scientific experiments of any Conventions or a serious violation of common
kind, or to removal of tissue or organs for Article 3 to the Geneva Conventions;
transplantation, which are neither justified
by the medical, dental or hospital treatment xx. Utilizing the presence of a civilian or other
of the person concerned nor carried out in protected person to render certain points, areas
his/her interest, and which cause death to or or military forces immune from military
operations;
seriously endanger the health of such person
or persons; xxi. Intentionally using starvation of civilians as
xii. Killing, wounding or capturing an adversary a method of warfare by depriving them of
by resort to perfidy; objects indispensable to their survival, including
willfully impeding relief supplies as provided
xiii. Declaring that no quarter will be given; for under the Geneva Conventions and their
Additional Protocols;
xiv. Destroying or seizing the enemy's property
unless such destruction or seizure is imperatively xxii. In an international armed conflict, compelling
demanded by the necessities of war; the nationals of the hostile party to take part
in the operations of war directed against
xv. Pillaging a town or place, even when taken their own country, even if they were in the
by assault; belligerent's service before the commencement
xvi. Ordering the displacements of the civilian of the war;
population for reasons related to the conflict, xxiii. In an international armed conflict, declaring
unless the security of the civilians involved abolished, suspended or inadmissible in a
or imperative military reasons so demand;
734 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 735
ON POLITICAL LAW

court of law the rights and actions of the ethnic, racial, religious, social or any other similar stable
nationals of the hostile party; and permanent group as such: a
xxiv. Committing any of the following acts: a. Killing members of the group;
a. Conscripting, enlisting or recruiting b. Causing serious bodily or mental harm to members
children under the age of fifteen (15) of the group;
years into the national armed forces;
c. Deliberately inflicting on the group conditions of life
b. Conscripting, enlisting or recruiting calculated to bring about its physical destruction in
children under the age of eighteen (18) whole or in part;
years into an armed force or group other
than the national armed forces; and d. Imposing measures intended to prevent births within
the group; and
c. Using children under the age of eighteen
(18) years to participate actively in e. Forcibly transferring children of the group to another
hostilities; and group.

xxv. Employing means of warfare which are It shall be unlawful for any person to directly and
prohibited under international law, such as: publicly incite others to commit genocide.

a. Poison or poisoned weapons; 3. Other crimes against humanity as defined under

Section 6 to mean any acts when committed as part of a
b. Asphyxiating, poisonous or other gases, widespread or systematic attack directed against any
and all analogous liquids, materials or civilian population, with knowledge of the attack.
devices;
a. Willful killing;
c. Bullets which expand or flatten easily in
the human body, such as bullets with b. Extermination;
hard envelopes which do not entirely cover c. Enslavement;
the core or are pierced with incisions; and
d. Arbitrary deportation or forcible transfer of
d. Weapons, projectiles and material and population;
methods of warfare which are of the
nature to cause superfluous injury or e. Imprisonment or other severe deprivation of
unnecessary suffering or which are physical liberty in violation of fundamental rules
inherently indiscriminate in violation of of international law;
the international law of armed conflict.
f. Torture;
2. Genocide as defined under Section 5 to meanany acts
with intent to destroy, in whole or in part, a national,
736 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 737
ON POLITICAL LAW

g. Rape, sexual slavery, enforced prostitution, forced Q: What are the requisites before double jeopardy can
pregnancy, enforced sterilization, or any other be invoked?
form of sexual violence of comparable gravity;
A: Under Section 17 of R.A. No. 9851, no criminal proceedings
h. Persecution against any identifiable group or shall be initiated against foreign nationals suspected or accused
collectivity on political, racial, national, ethnic, of having committed the crimes defined and penalized in R.A.
cultural, religious, gender, sexual orientation or No. 9851 if:
other grounds that are universally recognized as
impermissible under international law, in connection 1. they have been tried by a competent court outside the
with any act referred to in this paragraph or any Philippines;
crime defined in this Act; 2. in respect of the same offense; and
i. Enforced or involuntary disappearance of persons; 3. acquitted, or having been convicted, already served their
Apartheid; and sentence.
J.
k. Other inhumane acts of a similar character Q: Kevin, a Filipino citizen, is being prosecuted in the US of
intentionally causing great suffering, or serious having committed a crime against humanity. Melinda, the
injury to body or to mental or physical health. mother of a person killed by Kevin, filed a criminal case
against Kevin in the Philippines for violation of R.A. No.
2. Jurisdiction and Double Jeopardy — Section 17 9851. Kevin, who was currently in the Philippines, interposed
the defense that he can no longer be prosecuted in the
Q: How does the Philippines exercise jurisdiction over the Philippines because of the pendency of criminal prosecution
persons of accused who committed a crime defined and in the US and that the Philippines is required to instead yield
penalized under R.A. No. 9851? and surrender his person to the US authorities. Is the defense
of Kevin meritorious?
A: Regardless of where the crime is committed, the Philippines
shall exercise jurisdiction over persons, whether military or A: No, the defense of Kevin is not meritorious. Under Section
civilian, suspected or accused of a crime defined and penalized 17 of R.A. No. 9851, the relevant Philippine authorities may
in R.A. No. 9851 provided any of the following is present: dispense with the investigation or prosecution of a crime punishable
under this Act if another court or international tribunal is already
1. The accused is a Filipino citizen;
conducting the investigation or undertaking the prosecution of
2. The accused, regardless of citizenship or residence, is such crime. Instead, the authorities may surrender or extradite
present in the Philippines; or suspected or accused persons in the Philippines to the appropriate
international court, if any, or to another State pursuant to the
3. The accused has committed the said crime against a applicable extradition laws and treaties.
Filipino citizen.
 738 COMPENDIOUS BAR REVIEWER PUBLIC INTERNATIONAL LAW 739
ON POLITICAL LAW

In Bayan Muna v. Romulo,1737 the Supreme Court explained that application of this Act, but only within the bounds
this proviso clearly provides discretion to the Philippine State established under international law.
on whether to surrender or not a person accused of the crimes
under R.A. No. 9851. The statutory proviso uses the word 4. Responsibility of Superiors — Section 10
"may." It is settled doctrine in statutory construction that the
word "may" denotes discretion, and cannot be construed as Q: Explain the concept of command responsibility over
having mandatory effect. Thus, the pertinent second paragraph of crimes defined and penalized under R.A. No. 9851.
Sec. 17, RA 9851 is simply permissive on the part of the A: In Boac v. Cadapan,1738 the Supreme Court explained that
Philippine State and not mandatory. the legislature came up with R.A. No. 9851 to include command
responsibility as a form of criminal complicity in crimes against
3. Irrelevance of Official Capacity — Section 9
international humanitarian law, genocide and other crimes. R.A.
Q: How does R.A. No. 9851 treat the official capacity of an No. 9851 is thus the substantive law that definitively imputes
individual or immunities accorded to his person by virtue of criminal liability to those superiors who, despite their position,
his official capacity in prosecution of crimes punished under it? still fail to take all necessary and reasonable measures within
their power to prevent or repress the commission of illegal acts
A: Section 9 of R.A. No. 9851 provides that it shall apply or to submit these matters to the competent authorities for
equally to all persons without any distinction based on official investigation and prosecution.
capacity. In particular, official capacity as a head of state or
government, a member of a government or parliament, an elected Section 10 of R.A. No. 9851 provides that a superior shall be
representative or a government official shall in no case exempt criminally responsible as a principal for such crimes committed
a person from criminal responsibility under this Act, nor shall it, by subordinates under his/her effective command and control, or
in and of itself, constitute a ground for reduction of sentence. effective authority and control as the case may be, as a result of his/her
failure to properly exercise control over such subordinates, where:
However, this is subject to certain exceptions:
1. That superior either knew or, owing to the circumstances
1. Although the general rule is immunities or special at the time, should have known that the subordinates
procedural rules that may be attached to the official were committing or about to commit such crimes;
capacity of a person under Philippine law shall not bar
the court from exercising its jurisdiction over such a 2. That superior failed to take all necessary and reasonable
person, the established constitutional immunity from suit measures within his/her power to prevent or repress their
of the Philippine President during his/her tenure can still commission or to submit the matter to the competent
be invoked; and authorities for investigation and prosecution.

2. Immunities that may be attached to the official capacity

of a person under international law may limit the

1737 G.R. No. 159618, 01 February 2011. 1738 G.R. Nos. 184461-62, 184495 & 187109, 31 May 2011.
740 COMPENDIOUS BAR REVIEWER
ON POLITICAL LAW

5. Nonprescription — Section 11 ABOUT THE AUTHORS

Q: In 1980, a genocide was perpetrated in the course of the
Iran-Iraq War at the behest of LTG Mendoza. Crisanta, the Dean Nilo T. Divina
estranged wife of Louis, just discovered in 2023 that his Dean Divina is the Dean of his alma
husband was one of the casualties in the genocide. Crisanta mater, the University of Santo Tomas
instituted a criminal case in the same year against LTG Mendoza (UST) Faculty of Civil Law. He is also
for violation of R.A. No. 9851. In his defense, LTG Mendoza the Managing Partner of DivinaLaw, one
argued that the crime has already prescribed. Decide. of the biggest law firms in the country today.
A: LTG Mendoza may still be prosecuted for the crime he Dean Divina is an esteemed practitioner,
committed as it has not yet prescribed. Section 11 of R.A. No. academic administrator, law professor and
9851 provides that the crimes defined and penalized under this an acknowledged expert in Commercial Law. He is heralded as
Act, their prosecution, and the execution of sentences imposed one of the country's Top 100 lawyers since 2018 and awarded as
on their account, shall not be subject to any prescription. one of the industry's best employers and has won awards as
Managing Partner of the Year in 2015 and 2017 and 2021. In
2022, he was recognized as an outstanding alumnus of UST in
the field of law.
As an ardent advocate of improving legal education in the
—000-- country, Dean Divina has solely authored eight law books—a
Handbook on Commercial Law in 2005 (with 2010 Revised
Edition), a Guidebook on Commercial Law in 2016, Questions
& Answers on the Revised Corporation Code in 2020, Divina on
Commercial Law and Bar Q&A in Commercial Law 2009-2019
in 2021, Bar Q&A on Commercial Law for the past 10 years in
2022, and Divina on Commercial Law: A Comprehensive Guide
in 2023. He achieved a milestone as an author and member of
the academe when he produced the 2023 Divina Compendium
Bar Reviewer for all subjects of the Bar Exams.
As a former scholar himself, Dean Divina gives back by
waiving his royalties from his authored books to either make
them affordable or by donating all of his royalties to scholarships
and/or charity. His books are all best-selling and widely praised

741
742 COMPENDIOUS BAR REVIEWER ABOUT THE AUTHORS 743
ON POLITICAL LAW

by readers—from students to members of the bar. To encourage He is a member of the Committee of Experts in Political Law of
more lawyers and practitioners to write and share their expertise, the UP Law Center. Atty. Dela Cruz was a Chevening Scholar,
in 2023, Dean Divina incepted the publication of a collection of obtaining his Master of Laws degree major in International and
reviewers for all bar subjects. Comparative Business Law with distinction from the London
Metropolitan University in the United Kingdom. He was a
In true dynamic fashion, Dean Divina envisioned the former Provincial Board Member of the Province of Bulacan
Compendious Reviewer to symbolize the values he upholds in (2010-2019) and a former Councilor of the City of Baliwag,
practice—excellence, discipline and grit. He motivated his Bulacan (2001-2010; 2019-2022).
lawyers to give back and pay it forward by sharing their
expertise collaboratively. Nasha Jemimah R. Reyes-Ferrer
With the burning passion to educate, Dean Divina also Atty. Reyes-Ferrer is currently a
regularly writes in Daily Tribune's bi-weekly column called "A Partner at Div inaLaw and a member of
Dose of Law". A Dose of Law tackles recent jurisprudence and the Firm's Corporate and Special Projects
discusses highly relevant laws and regulations. The column has .t, Group. She is also a Certified Compliance
produced more than 400 published articles and has reached more Officer. She obtained her Juris Doctor
than two million readers worldwide. degree and bachelor's degree in Business
Administration (Cum Laude) from the
Dean Divina graduated Magna Cum Laude and class University of the Philippines-Diliman.
valedictorian from the UST Faculty of Civil Law.
Jennel L. Chu
As a man of faith, Dean Divina is known for his quote
"Pray as if everything depends on prayer, and work as if Atty. Chu is currently a Senior
everything depends on work." Associate at DivinaLaw and a member of
the Firm's practice groups of Corporate,
Enrique V. Dela Cruz Jr. Immigration, Intellectual Property, Labor
Atty. Dela Cruz is currently a Senior and Litigation. She obtained her bachelor's
Partner at Divina Law. He is also the degree in Legal Management from De
Firm's Data Protection Officer. He is a La Salle University and her Bachelor of
Certified Information Privacy Manager Law from San Beda University. Atty. Chu studied Chinese
(CIPM) by the International Association of Language and Culture at the University of International Business
Privacy Professionals (IAPP). He is a and Economics in China.
professor of Constitutional Law, International
Law and Political Law Review at the
University of Santo Tomas where he also
finished his Juris Doctor and graduated Cum Laude in Legal
Management. He is also a lecturer at the UP Bar Review Institute
and the UP NCPAG Center for Local and Regional Governance.
744 COMPENDIOUS BAR REVIEWER ABOUT THE AUTHORS 745
ON POLITICAL LAW

Ma. Ninna Roem A. Bonsol Maria Carissa C. Guinto

vA14- .46.1t.L.,-*"1
Atty. Bonsol is a Senior Atty. Guinto is an Associate
Associate at DivinaLaw and a member at DivinaLaw and a member of
V of the Firm's Corporate and Special the Firm's litigation division. She
Projects. She obtained her Juris Doctor was an exemplary passer in the
degree and bachelor's degree in Legal 2020/21 Bar Examinations. She
Management from the University of obtained her Juris Doctor degree
Santo Tomas, where she graduated from San Beda University, where she was Top 7 of her
st(,-4;14E-- valedictorian and Magna Cum Laude graduating class. She received her bachelor's degree in Political
in both degrees. Atty. Bonsol is Science from the University of the Philippines, where she
currently a professor at the University of Santo Tomas Faculty of graduated Cum Laude.
Civil Law.
Iyla Marie D. Ferrer
Peter Paolo P. Dim III
Atty. Ferrer is an Associate at
Atty. Dim is an Associate at DivinaLaw and a member of the Firm's
DivinaLaw and a member of the litigation division. She obtained her Juris
Firm's litigation division. He obtained Doctor degree from the University of the
his Juris Doctor degree from the Philippines. She graduated Cum Laude
Ateneo de Manila University, where from the same university with a bachelor's
he was part of the Second Honors degree in Business Economics.
List. He received his bachelor's degree in Legal Management
from the same university. Norbert Peter R. Indunan
Atty. Indunan is an Associate at
Joseph Lorenz A. Asuncion
DivinaLaw and a member of the Firm's
Atty. Asuncion is an Associate litigation division. He obtained his Juris
at DivinaLaw and a member of the Doctor degree from the University of the
Firm's litigation division. He was Philippines. He graduated Cum Laude
an exemplary passer in the 2020/21 from the same university with a Bachelor
I EN Bar Examinations. He graduated of Arts degree in Public Administration
from the De La Salle University
College of Law where he was Top 2 of his graduating class.
746 COMPENDIOUS BAR REVIEWER
ON POLITICAL LAW

Joshua Cris F. Aguilar

Atty. Aguilar is an Associate at
DivinaLaw and a member of the Firm's
litigation division. He graduated from the
University of the Philippines College of
Law, with a Dean's Medal for Academic
Excellence. He graduated Cum Laude
from the same university with a Bachelor
of Arts degree in Political Science.

Stephanie A. Serapio
Atty. Serapio is an Associate at
DivinaLaw and a member of the Firm's
litigation division. She obtained her Juris
Doctor degree from the Ateneo de Manila
University, where she was part of the
Second Honors List. She graduated Cum
Laude from De La Salle University with a degree in Bachelor of
Arts Major in Political Science.

Jonathan Victor S. Noel

Atty. Noel is an associate at DivinaLaw
and a member of the Firm's Litigation
division. He obtained his Juris Doctor from
the Ateneo de Manila University School of
Law where he graduated with honors. He
graduated Cum Laude from the University
of the Philippines with a Bachelor of
Science degree in Business Administration.

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