POLITICAL LAW

impeachment trial started and the people conducted mayor after serving three full terms as mayor since the
a 10-kilometer line holding lighted candles in EDSA recall election is not considered an immediate re-
Shrine to symbolize their solidarity in demanding election, it is not counted for purposes of the 3-term
Hazel’s resignation. On January 19, Hazel agreed to limit. Term limits should be construed strictly to give the
the holding of a snap election for President. On fullest possible effect to the right of the electorate to
January 20, Chief Justice Ramon administered the choose their leaders. (Socrates v. COMELEC, G.R. No.
oath to respondent Kristina as President of the 154512, Nov. 12, 2002)
Philippines. On the same day, Hazel issued a press
statement that she was leaving Malacañang Palace Abandonment (2000 Bar)
for the sake of peace and in order to begin the
healing process of the nation. It also appeared that It is the voluntary relinquishment of an office by the
onq the same day, she signed a letter stating that she holder with the intention of terminating his possession
was transmitting a declaration that she was unable and control thereof.
to exercise the powers and duties of his office and
that by operation of law and the Constitution, the ---
Vice-President shall be the Acting President. Are the Q: Does the acceptance of an incompatible office ipso
acts of Hazel constitutive of resignation? facto vacate the other?

A: YES. Resignation is not a high level legal abstraction. It A: GR: Yes.

is a factual question and its elements are beyond
quibble: there must be an intent to resign and the intent XPN: Where such acceptance is authorized by law.
must be coupled by acts of relinquishment (totality ---
test). The validity of a resignation is not governed by any
formal requirement as to form. It can be oral, written, NOTE: It is contrary to the policy of the law that the
express or implied. As long as the resignation is clear, it same individual should undertake to perform
must be given legal effect. (Estrada v. Arroyo, G.R. No. inconsistent and incompatible duties. He who, while
146738, March 2, 2001) occupying one office, accepts another incompatible with
--- the first, ipso facto, absolutely vacates the first office.
That the second office is inferior to the first does not
Removal affect the rule.

Forcible and permanent separation of the incumbent ---

from office before the expiration of the public officer's Q: Does the acceptance of an incompatible office
term. (Feria, Jr. v. Mison, G.R. No. 8196, August 8, 1989) pertain to its physical impossibility or its nature?

Recall A: By the nature and relation of the two offices to each

other, they should not be held by one person from the
It is an electoral mode of removal employed directly by contrariety and antagonism which would result in the
the people themselves through the exercise of their right attempt by one person to faithfully and impartially
of suffrage. It is a political question not subject to judicial discharge the duties of one, toward the incumbent of the
review. It is a political question that has to be decided by other.
the people in their sovereign capacity. (Evardone v. ---
COMELEC, G.R. No. 94010, Dec. 2, 1991)
Prescriptive period for petitions for reinstatement
NOTE: Recall only applies to local officials. or recovery of public office

Limitations on recall It must be instituted within one (1) year from the date of
unlawful removal from the office. Such period may be
1. An elective official can be subjected to recall only extended on grounds of equity.
once.
2. No recall shall take place within one (1) year from Period to take the oath of office to avoid failure to
the assumption of office or one year immediately assume office
preceding a regular local election
[Republic Act No. 7160, Sec. 74 (b)] Failure to take the oath of office within 6 months from
proclamation of election shall cause the vacancy of the
NOTE: For the time bar to apply, the approaching office UNLESS such failure is for a cause beyond his
local election must be one where the position of the control. (B.P. 881, Sec. 11,)
official to be recalled is to be actually contested and
filled by the electorate. (Angobung v. COMELEC, G.R. Termination of official relationship through
No. 126576, March 5, 1997) conviction by final judgment

Effect of Recall on the 3-term limit rule (2010 Bar) When the penalty imposed carries with it the accessory
penalty of disqualification.
The three-term limit for local elected officials is not
violated when a local official wins in a recall election for

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 LAW ON PUBLIC OFFICERS
instrumentality thereof including GOCCs or their
THE CIVIL SERVICE subsidiaries. [1987 Constitution, Art. IX-B, Sec. 7(2)]
4. No officer or employee in the civil service shall
engage, directly or indirectly, in any electioneering
SCOPE or partisan political activity. [1987 Constitution,
Art. IX-B, Sec. 2(4)]
The Civil Service embraces every branch, agency,
subdivision, and instrumentality of the government,
including every government-owned or controlled CLASSIFICATION
corporations whether performing governmental or
proprietary functions. [1987 Constitution, Art. IX-B, Sec. 1. Career Service
2(1)] 2. Non-Career Service

As the central personnel agency of the government, it: Career Service

1. Establishes a career service;
2. Adopts measures to promote morale, efficiency, The Career Service shall be characterized by (1) entrance
integrity, responsiveness, progressiveness and based on merit and fitness to be determined as far as
courtesy in the Civil Service; practicable by competitive examinations, or based on
3. Strengthens the merits and rewards system; highly technical qualifications; (2) opportunity for
4. Integrates all human resources and development advancement to higher career positions; and (3) security
programs for all levels and ranks; of tenure.
5. Institutionalizes a management climate conducive
to public accountability. (1987 Constitution, Art. IX- The Career Service shall include:
B, Sec. 3)
1. Open Career positions for appointment to which prior
Composition of the CSC qualification in an appropriate examination is required;

A. Chairman 2. Closed Career positions which are scientific or highly

B. 2 Commissioners technical in nature; these include the faculty and
academic staff of state colleges and universities, and
The Chairman and the Commissioners shall be appointed scientific and technical positions in scientific or research
by the President with the consent of the Commission on institutions which shall establish and maintain their own
Appointments for a term of seven years without merit systems;
reappointment.
3. Positions in the Career Executive Service (CES);
NOTE: Appointment to any vacancy shall be only for the namely, Undersecretary, Assistant Secretary, Bureau
unexpired term of the predecessor. In no case shall any Director, Assistant Bureau Director, Regional Director,
Member be appointed or designated in a temporary or Assistant Regional Director, Chief of Department Service
acting capacity [1987 Constitution, Art. IX-B, Sec. 1(2)] and other officers of equivalent rank as may be identified
by the Career Executive Service Board, all of whom are
Qualifications appointed by the President;

1. Natural-born citizen, NOTE: For a position to be considered as CES,

2. At least 35 years old at the time of appointment, a. The position must be among those enumerated
3. With proven capacity for public administration; under Book V, Title I, Subtitle A, Chapter 2,
and Section 7(3) of the Administrative Code of 1987
4. Not a candidate in any election immediately or a position of equal rank as those enumerated
preceding the appointment [1987 Constitution, Art. and identified by the CESB to be such position
IX-B, Sec 1(1)] of equal rank; and
b. The holder of the position must be a
Disqualifications presidential appointee. (Seneres v. Sabido, G.R.
No. 172902, October 21, 2015)
1. No candidate who has lost in any election shall,
within 1 year after such election, be appointed to Requisites for a CES employee to acquire security of
any office in the Government of any GOCC or in any tenure:
of its subsidiaries. (1987 Constitution, Art. IX-B, Sec. a. CES eligibility; and
6) b. Appointment to the appropriate CES rank.
2. No elective official shall be eligible for appointment (Seneres v. Sabido, ibid.)
or designation in any capacity to any public office
or position during his tenure. [1987 Constitution, (See more detailed discussion under Security of
Art. IX-B, Sec. 7(1)] (1995, 2002 Bar) tenure for CES, infra.)
3. Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall 4. Career officers, other than those in the Career
hold any other office or employment in the Executive Service, who are appointed by the President,
Government or any subdivision, agency or

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such as the Foreign Service Officers in the Department of
Foreign Affairs; b) Except as herein otherwise provided, entrance to
5. Commissioned officers and enlisted men of the Armed the first two levels shall be through competitive
Forces which shall maintain a separate merit system; examinations, which shall be open to those inside
and outside the service who meet the minimum
6. Personnel of government-owned or controlled qualification requirements. Entrance to a higher
corporations, whether performing governmental or level does not require previous qualification in the
proprietary functions, who do not fall under the non- lower level. Entrance to the third level shall be
career service; and prescribed by the Career Executive Service Board.

7. Permanent laborers, whether skilled, semi-skilled, or c) Within the same level, no civil service examination
unskilled. shall be required for promotion to a higher position
in one or more related occupational groups. A
Non-Career Service candidate for promotion should, however, have
previously passed the examination for that level. (
The Non-Career Service shall be characterized by (1) P.D. 807, Art. IV)
entrance on bases other than those of the usual tests of
merit and fitness utilized for the career service; and (2) APPOINTMENTS TO THE CIVIL SERVICE
tenure which is limited to a period specified by law, or
which is coterminous with that of the appointing Manner of appointment to the civil service
authority or subject to his pleasure, or which is limited to
the duration of a particular project for which purpose Appointments in the civil service shall be made only
employment was made. according to merit and fitness to be determined, as far as
practicable, and, except to positions which are policy-
The Non-Career Service shall include: determining, primarily confidential, or highly technical,
by competitive examination. (1987 Constitution, Art. IX-B
1. Elective officials and their personal or confidential Sec. 2[2])
staff;
2. Department Heads and other officials of Cabinet rank Principal groups of position in the Civil Service, on
who hold positions at the pleasure of the President and the basis of appointment
their personal or confidential staff(s);
3. Chairman and members of commissions and boards 1. Competitive positions – according to merit and
with fixed terms of office and their personal or fitness to be determined by competitive
confidential staff; examinations, as far as practicable.
4. Contractual personnel or those whose employment in 2. Non-competitive positions – do not have to take into
the government is in accordance with a special contract account merit and fitness. No need for competitive
to undertake a specific work or job, requiring special or examinations.
technical skills not available in the employing agency, to a. Policy-determining – tasked to formulate a
be accomplished within a specific period, which in no method of action for the government or any of
case shall exceed one year, and performs or its subdivisions.
accomplishes the specific work or job, under his own b. Primarily confidential – duties are not merely
responsibility with a minimum of direction and clerical but devolve upon the head of an office,
supervision from the hiring agency; and which, by reason of his numerous duties,
5. Emergency and seasonal personnel. delegates his duties to others, the performance
of which requires skill, judgment, trust and
Classes of Positions in the Career Service confidence

a) Classes of positions in the career service Proximity Rule

appointment to which requires examinations shall
be grouped into three major levels as follows: The test used to determine confidentiality of a
position. The occupant of a particular position
1. The first level shall include clerical, trades, could be considered a confidential employee if the
crafts, and custodial service positions which predominant reason why he was chosen by the
involve non-professional or sub-professional appointing authority was the latter’s belief that he
work in a non-supervisory or supervisory can share a close intimate relationship with the
capacity requiring less than four years of occupant which ensures freedom of discussion
collegiate studies; without fear of embarrassment or misgivings of
2. The second level shall include professional, possible betrayals of personal trust and
technical, and scientific positions which involve confidential matters of State. (De los Santos v.
professional, technical, or scientific work in a Mallare, G.R. No. L-3881, August 31, 1950)
non-supervisory or supervisory capacity
requiring at least four years of college work up c. Highly technical – requires technical skill or
to Division Chief level; and training in the highest degree
3. The third level shall cover positions in the
Career Executive Service.

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NOTE: The test to determine whether the position in an acting capacity, which can be terminated at any
is non-competitive is the nature of the time, the officer cannot invoke the security of tenure.
responsibilities, not the description given to it. The
Constitution does not exempt the above-given NOTE: The holder of a temporary appointment cannot
positions from the operation of the principle that claim a vested right to the station to which assigned, nor
“no officer or employee of the civil service shall be to security of tenure thereat. Thus, he may be reassigned
removed or suspended except for cause provided by to any place or station. (Teotico v. Agda, G.R. No. 87437,
law.” May 29, 1991)

--- Attachment of security of tenure

Q: Who may be appointed in the civil service?
It attaches once an appointment is issued and the
A: Whoever fulfills all the qualifications prescribed by moment the appointee assumes a position in the civil
law for a particular position may be appointed therein. service under a completed appointment, he acquires a
legal, not merely equitable, right (to the position) which
NOTE: The CSC cannot disapprove an appointment just is protected not only by statute, but also by the
because another person is better qualified, as long as the constitution, and cannot be taken away from him either
appointee is himself qualified. It cannot add by revocation of the appointment, or by removal, except
qualifications other than those provided by law. (Cortez for cause, and with previous notice and hearing. (Aquino
v. CSC, G.R. No. 92673, March 13, 1991) v. CSC, G.R. No. 92403, April 22, 1992)
---
Security of tenure for Career Executive Service(CES)
Security of tenure
Security of tenure in the CES is thus acquired with
It means that no officer or employee in the civil service respect to rank and not to position. The guarantee of
shall be suspended or dismissed except for cause security of tenure to members of the CES does not
provided by law, and after due process or after he shall extend to the particular positions to which they may be
have been given the opportunity to defend himself. appointed - a concept which is applicable only to first
and second-level employees in the civil service - but to
NOTE: One must be validly appointed to enjoy security the rank to which they are appointed by the President.
of tenure. Thus, one who is not appointed by the proper Within the CES, personnel can be shifted from one office
appointing authority does not acquire security of tenure. or position to another without violation of their right to
security of tenure because their status and salaries are
Once an appointment is issued and completed and the based on their ranks and not on their jobs. (Seneres v.
appointee assumes the position, he acquires a legal right, Sabido, G.R. No. 172902, Oct. 21, 2015)
not merely an equitable right to the position. (Lumigued
v. Exevea, G.R. No. 117565, November. 18, 1997) Illustration: The position of NCC (National Computer
Center) Director General is a CES position equivalent to
Regardless of the characterization of the position held by Career Executive Service Officer (CESO) Rank I.
a government employee covered by civil service rules, be Seneres is already CES eligible, but no President has
it career or non-career position, such employee may not yet appointed him to any CES rank (despite the
be removed without just cause. (Jocom v. Regalado, G.R. previous recommendation of the CESB for his
No. 77373, August 22, 1991) appointment to CESO Rank I). Therefore, Seneres's
membership in the CES is still incomplete. Falling short
Bases of the constitutional guaranty of security of of one of the qualifications that would complete his
tenure in the civil service (1999, 2005 Bar) membership in the CES, Seneres cannot successfully
interpose violation of security of tenure. His
The prohibition against suspension or dismissal of an appointment to the position of NCC Director General
officer or employee of the Civil Service “except for cause could only be construed as temporary, and he could be
provided by law” is “a guaranty of both procedural and removed any time even without cause. Even assuming
substantive due process.” “Not only must removal or that he was already conferred with a CES rank, his
suspension be in accordance with the procedure appointment would be permanent as to his CES rank
prescribed by law, but also they can only be made on the only but not as to his position as NCC Director General.
basis of a valid cause provided by law.” (Land Bank of the As member of the CES, he could be reassigned or
Philippines v Rowena O. Paden, G.R. No. 157607, July 7, transferred from one position to another from one
2009). department, bureau, or office to another provided that
there would be no reduction in his rank or salary and
Characteristic of security of tenure that his reassignment/transfer was not oftener than
every two years, among other conditions. (Seneres v.
It is the nature of the appointment that characterizes Sabido, ibid.)
security of tenure and not the nature of one’s duties or
functions. Security of tenure for non-competitive positions

Where the appointment is permanent, it is protected by 1. Primarily confidential officers and employees hold
the security of tenure provision. But if it is temporary or office only for so long as confidence in them

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remains. If there is genuine loss of confidence, there In fine, a primarily confidential position is characterized
is no removal, but merely the expiration of the term by the close proximity of the positions of the appointer
of office. and appointee as well as the high degree of trust and
2. Non-career service officers and employees’ security confidence inherent in their relationship.
of tenure is limited to a period specified by law,
coterminous with the appointing authority or In the light of the instant controversy, the Court's view is
subject to his pleasure, or which is limited to the that the greater public interest is served if the position of
duration of a particular purpose. a corporate secretary is classified as primarily
3. Political appointees in Foreign Service possess confidential in nature. (CSC v. Javier, G.R. No. 173264,
tenure coterminous with that of the appointing February 22, 2008)
authority or subject to his pleasure. ---

Instances where a transfer may be considered

violative of employee’s security of tenure PERSONNEL ACTIONS

When the transfer is a preliminary step toward his Any action denoting movement or progress of personnel
removal, or a scheme to lure him away from his in the civil service. (City Mayor Debulgado v. CSC, G.R. No.
permanent position, or when it is designed to indirectly 111471, Sept. 26, 1994)
terminate his service, or force his resignation. Such a
transfer would in effect circumvent the provision that Personnel actions include
safeguards the tenure of office of those who are in the
Civil Service. (CSC v. PACHEO, G.R. No. 178021, January 1. Appointment through Certification – Issued to a
25, 2012) person who has been selected from a list of qualified
persons certified by the Commission from an
NOTE: Acceptance of a temporary appointment or appropriate register of eligible and who meets all
assignment without reservation or upon one’s own other requirements of the position [Revised
volition is deemed waiver of security of tenure. (Palmera Administrative Code of 1987, Title I-A, Book V,
v. CSC, G.R. No. 110168, August 4, 1994) Chapter 5, Sec. 26(2)].
2. Promotion – Movement from one position to
Rules applicable to temporary employees vis-a-vis another with increase in duties and responsibilities
security of tenure as authorized by law and usually accompanied by an
increase in pay [Revised Administrative Code of 1987,
1. Not protected by security of tenure – can be Title I-A, Book V, Chapter 5, Sec. 26(2)].
removed anytime even without cause. 3. Transfer – A movement from one position to
2. If they are separated, this is considered an another which is of equivalent rank, level or salary
expiration of term. But, they can only be removed by without break in service involving issuance of an
the one who appointed them. appointment.
3. Entitled to such protection as may be provided by 4. Reinstatement – A person who has been
law. [1987 Constitution, Art. IX-B, Sec. 2(6)] permanently appointed to a position in the career
service and who has, through no delinquency or
--- misconduct, been separated therefrom, may be
Q: May the courts determine the proper reinstated to a position in the same level for which
classification of a position in government? Is the he is qualified.
position of corporate secretary in a GOCC primarily 5. Reemployment – Persons who have been appointed
confidential in nature? permanently to positions in the career service and
who have been separated as result of reduction in
A: The courts may determine the proper classification of force and or reorganization shall be entered in a list
a position in government. A strict reading of the law (EO from which selection for reemployment shall be
292) reveals that primarily confidential positions fall made (The Revised Administrative Code of 1987,
under the non-career service. The tenure of a Chapter 5, Book V, Title I-A, Sec. 26[5]).
confidential employee is coterminous with that of the 6. Detail – A movement of an employee from one
appointing authority, or is at the latter's pleasure. agency to another without issuance of an
However, the confidential employee may be appointed appointment and shall be allowed, only for a limited
or remain in the position even beyond the compulsory period in the case of employees occupying
retirement age of 65 years. professional, technical and scientific positions (The
Revised Administrative Code of 1987, Chapter 5, Book
Jurisprudence establishes that the Court is not bound by V, Title I-A, Sec. 26[6]).
the classification of positions in the civil service made by 7. Reassignment – An employee may be reassigned
the legislative or executive branches, or even by a from one organizational unit to another in the same
constitutional body like the CSC. The Court is expected agency, provided that such reassignment shall not
to make its own determination as to the nature of a involve a reduction in rank, status or salary [Revised
particular position, such as whether it is a primarily Administrative Code of 1987, Title I-A, Book V,
confidential position or not, without being bound by Chapter 5, Sec. 26(7)].
prior classifications made by other bodies. 8. Demotion – A movement from one position to
another involving the issuance of an appointment

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 LAW ON PUBLIC OFFICERS
with diminution in duties, responsibilities, status or construction of the Constitution, on which students of law
rank which may or may not involve reduction in may sincerely differ, cannot be considered a valid ground
salary. for impeachment.
9. Secondment – movement of an employee from one
department or agency to another which is Betrayal of public trust
temporary in nature. It may or may not require the
issuance of an appointment, and may involve an Refer to “acts which are just short of being criminal but
increase in compensation and benefits. Acceptance constitute gross faithlessness against public trust,
of a secondment is voluntary on the part of the tyrannical abuse of power, inexcusable negligence of duty,
employee. The payment of salaries of a seconded favoritism, and gross exercise of discretionary powers.”
employee shall be borne by the receiving agency Acts that should constitute betrayal of public trust as to
and the seconded employee shall be on leave warrant removal from office may be less than criminal but
without pay in his mother agency for the duration of must be attended by bad faith and of such gravity and
his secondment. (Seneres v. Sabido, G.R. No. 172902, seriousness as the other grounds for impeachment.
Oct. 21, 2015) (Gonzales III v. Office of the President, G.R. No. 196231,
September 4, 2012)

ACCOUNTABILITY OF PUBLIC OFFICERS Steps in the impeachment process (2012 Bar)

1. Initiating impeachment case

IMPEACHMENT a. Verified complaint filed by any member of the
(2012 Bar) House of Representatives or any citizen upon
resolution of endorsement by any member
Method by which persons holding government positions thereof.
of high authority, prestige, and dignity and with definite
tenure may be removed from office for causes closely NOTE: If the verified complaint is filed by at
related to their conduct as public officials. least 1/3 of all its members of the House of
Representatives, the same shall constitute the
NOTE: It is a national inquest into the conduct of public Articles of Impeachment, and trial by the
men. It is primarily intended for the protection of the Senate shall forthwith proceed. [1987
State, not for the punishment of the offender. The Constitution, Art. XI, Sec. 3 (4)]
penalties attached to the impeachment are merely
incidental to the primary intention of protecting the b. Inclusion in the order of business within 10
people as a body politic. session days.
c. Referred to the proper committee within 3
Impeachable officers session days from its inclusion.
d. The committee, after hearing, and by majority
1. President vote of all its members, shall submit its report
2. Vice-President to the House of Representatives together with
3. Members of the Supreme Court the corresponding resolution.
4. Members of the Constitutional Commissions e. Placing on calendar the Committee resolution
5. Ombudsman within 10 days from submission;
f. Discussion on the floor of the report;
NOTE: The enumeration is exclusive (1987 Constitution, g. A vote of at least 1/3 of all the members of the
Art. XI, Sec. 2). House of Representatives shall be necessary
either to affirm a favorable resolution with the
Grounds for impeachment (CTB-GOB) (1999, 2012, Articles of Impeachment of the committee or
2013 Bar) override its contrary resolution. [(1987
Constitution, Art. XI, Sec. 3 (2-3)]
1. Culpable violation of the Constitution
2. Treason 2. Trial and Decision in impeachment proceedings
3. Bribery a. The Senators take an oath or affirmation
4. Graft and Corruption
5. Other high crimes NOTE: When the President of the Philippines
6. Betrayal of public trust (1987 Constitution, Art. XI, shall be impeached, the Chief Justice of the
Sec. 2) Supreme Court shall preside, otherwise the
Senate President shall preside in all other cases
NOTE: The enumeration is exclusive. of impeachment (Senate Resolution No. 890).

Culpable violation of the Constitution b. A decision of conviction must be concurred in

by at least 2/3 of all the members of Senate.
It refers to wrongful, intentional or willful disregard or
flouting of the fundamental law. Obviously, the act must be NOTE: The power to impeach is essentially a non-
deliberate and motivated by bad faith to constitute a legislative prerogative and can be exercised by Congress
ground for impeachment. Mere mistakes in the proper only within the limits of the authority conferred upon it

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by the Constitution (Gutierrez v. House of Representatives 2. Not more than one impeachment proceeding shall
Committee on Justice, G.R. No. 193459, Feb. 15, 2011). be initiated against the same official within a period
of one year. (One-year bar rule)
The Senate has the sole power to try and decide all cases
of impeachment. (1987 Constitution, Art. XI, Sec. 3[6]) NOTE: An impeachment case is the legal controversy
that must be decided by the Senate while an
Impeachment is deemed initiated impeachment proceeding is one that is initiated in
the House of Representatives. For purposes of
A verified complaint is filed and referred to the applying the one-year bar rule, the proceeding is
Committee on Justice for action. This is the initiating step initiated or begins when a verified complaint is filed
which triggers the series of steps that follow. The term and referred to the Committee on Justice for action.
“to initiate” refers to the filing of the impeachment (Francisco v. House of Representatives, et. al., G.R. No.
complaint coupled with Congress’ taking initial action of 160261, Nov. 10, 2003)
said complaint. (Francisco v. House of Rep., G.R. No.
160261, Nov. 10, 2003) The power to impeach is essentially a non-
legislative prerogative and can be exercised by
NOTE: Initiation takes place by the act of filing of the Congress only within the limits of the authority
impeachment complaint and referral to the House conferred upon it by the Constitution (Francisco v.
Committee on Justice. Once an impeachment complaint House of Representatives, ibid). It is, by its nature, a
has been initiated in the foregoing manner, another may sui generis politico-legal process. (Gonzales III v.
not be filed against the same official within a one year Office of the President, G.R. 196231, January 28, 2014)
period. (Gutierrez v. House of Representatives Committee
on Justice, G.R. No. 193459, Feb. 15, 2011) One-year bar rule (2014 Bar)

Determination of sufficiency of form and substance Initiation takes place by the act of filing of the
of an impeachment complaint impeachment complaint and referral to the House
Committee on Justice. Once an impeachment complaint
An exponent of the express constitutional grant of has been initiated in the foregoing manner, another may
rulemaking powers of the HoR. not be filed against the same official within a one year
period. (Gutierrez v. HoR Committee on Justice, ibid.).
In the discharge of that power and in the exercise of its
discretion, the House has formulated determinable NOTE: refers to the element of time, and not the number
standards as to form and substance of an impeachment of complaints. The impeachable officer should defend
complaint. Furthermore, the impeachment rules are himself in only one impeachment proceeding, so that he
clear in echoing the constitutional requirements in will not be precluded from performing his official
providing that there must be a “verified complaint or functions and duties. Similarly, Congress should run only
resolution” and that the substance requirement is met if one impeachment proceeding so as not to leave it with
there is “a recital of facts constituting the offense little time to attend to its main work of law-making.
charged and determinative of the jurisdiction of the (Gutierrez v. The House of Representatives Committee on
committee.” (Gutierrez v. House of Representatives Justice, ibid.)
Committee on Justice, G.R. No. 193459, Feb. 15, 2011)
Purpose of the one-year bar rule
Power of the HoR to determine the sufficiency of
form and substance of an impeachment complaint The purpose of the one-year bar is two-fold:
1. To prevent undue or too frequent harassment
It is an exponent of the express constitutional grant of 2. To allow the legislature to do its principal task of
rulemaking powers of the House of Representatives. In legislation (Francisco v. House of Representatives
the discharge of that power and in the exercise of its ibid.).
discretion, the House has formulated determinable
standards as to form and substance of an impeachment The consideration behind the intended limitation refers
complaint. Furthermore the impeachment rules are clear to the element of time, and not the number of
in echoing the constitutional requirements in providing complaints. The impeachable officer should defend
that there must be a “verified complaint or resolution” himself in only one impeachment proceeding, so that he
and that the substance requirement is met if there is “a will not be precluded from performing his official
recital of facts constituting the offense charged and functions and duties. Similarly, Congress should run only
determinative of the jurisdiction of the committee” one impeachment proceeding so as not to leave it with
(Gutierrez v. House of Representatives Committee on little time to attend to its main work of law-making. The
Justice, ibid.). doctrine laid down in Francisco that initiation means
filing and referral remains congruent to the rationale of
Limitations imposed by the Constitution upon the the constitutional provision (Gutierrez v. The House of
initiation of impeachment proceedings Representatives Committee on Justice, G.R. No. 193459,
Feb. 15, 2011)
1. The House of Representatives shall have the
exclusive power to initiate all cases of impeachment. NOTE: Congress may look into separate complaints
against an impeachable officer and consider the

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 LAW ON PUBLIC OFFICERS
inclusion of matters raised therein, in the adoption of the Government, the investigation of such cases;
Articles of Impeachment. (Francisco v. House of (2012 Bar)
Representatives, et. al., G.R. No. 160261, Nov. 10, 2003) 2. Direct, upon complaint or at its own instance, any
officer or employee of the Government, or of any
Effects of conviction in impeachment (2012 Bar) subdivision, agency or instrumentality thereof, as
well as any government-owned or controlled
1. Removal from office corporations with original charter, to perform
2. Disqualification to hold any other office under the and expedite any act or duty required by law, or
Republic of the Philippines to stop, prevent, and correct any abuse or
3. Party convicted shall be liable and subject to impropriety in the performance of duties;
prosecution, trial and punishment according to law. 3. Direct the officer concerned to take appropriate
[1987 Constitution, Art. XI, Sec. 3 (7)] action against a public officer or employee at fault
or who neglect to perform an act or discharge a
--- duty required by law, and recommend his
Q: Can a Supreme Court Justice be charged in a removal, suspension, demotion, fine, censure, or
criminal case or disbarment proceeding instead of prosecution, and ensure compliance therewith; or
an impeachment proceeding? enforce its disciplinary authority as provided in
Section 21 of R.A. 6770: provided, that the refusal
A: No, because the ultimate effect of either is to remove by any officer without just cause to comply with
him from office, circumventing the provision on removal an order of the Ombudsman to remove, suspend,
by impeachment thus violating his security of tenure. (In demote, fine, censure, or prosecute an officer or
Re: First Indorsement from Hon. Raul Gonzalez, A.M. No. employee who is at fault or who neglects to
88-4-5433, April 15, 1988) perform an act or discharge a duty required by
law shall be a ground for disciplinary action
An impeachable officer who is a member of the against said officer; (2009 Bar)
Philippine bar cannot be disbarred first without being 4. Direct the officer concerned, in any appropriate
impeached. (Jarque v. Desierto, A.C. No. 4509, 5 December case, and subject to such limitations as it may
1995) provide in its rules of procedure, to furnish it with
--- copies of documents relating to contracts or
transactions entered into by his office involving
Judicial Review in Impeachment Proceedings the disbursement or use of public funds or
properties, and report any irregularity to the
The precise role of the judiciary in impeachment cases is Commission on Audit for appropriate action;
a matter of utmost importance to ensure the effective 5. Request any government agency for assistance
functioning of the separate branches while preserving and information necessary in the discharge of its
the structure of checks and balance in our government. responsibilities, and to examine, if necessary,
The acts of any branch or instrumentality of the pertinent records and documents;
government, including those traditionally entrusted to 6. Publicize matters covered by its investigation of
the political departments, are proper subjects of judicial the matters mentioned in paragraphs (1), (2), (3)
review if tainted with grave abuse or arbitrariness. (Chief and (4) hereof, when circumstances so warrant
Justice v. Senate, G.R. No. 200242, July 17, 2012) and with due prudence: provided, that the
Ombudsman under its rules and regulations may
determine what cases may not be made public:
OMBUDSMAN provided, further, that any publicity issued by the
Ombudsman shall be balanced, fair and true;
Composition: 7. Determine the causes of inefficiency, red tape,
mismanagement, fraud, and corruption in the
1. The Ombudsman Government, and make recommendations for
2. One overall Deputy their elimination and the observance of high
3. At least one Deputy each for Luzon, Visayas and standards of ethics and efficiency;
Mindanao 8. Administer oaths, issue subpoena and subpoena
4. One Deputy for the military establishment duces tecum, and take testimony in any
(1987 Philippine Constitution, Art. XI, Section 5) investigation or inquiry, including the power to
examine and have access to bank accounts and
FUNCTIONS records;
9. Punish for contempt in accordance with the Rules
1. Investigate and prosecute on its own or on of Court and under the same procedure and with
complaint by any person, any act or omission of the same penalties provided therein;
any public officer or employee, office or agency, 10. Delegate to the Deputies, or its investigators or
when such act or omission appears to be illegal, representatives such authority or duty as shall
unjust, improper or inefficient. It has primary ensure the effective exercise or performance of
jurisdiction over cases cognizable by the the powers, functions, and duties herein or
Sandiganbayan and, in the exercise of this hereinafter provided;
primary jurisdiction, it may take over, at any 11. Investigate and initiate the proper action for the
stage, from any investigatory agency of recovery of ill-gotten and/or unexplained wealth

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amassed after February 25, 1986 and the Rank and salary
prosecution of the parties involved therein (R.A.
6770, Sec. 15). The Ombudsman and his Deputies shall have the rank of
12. Promulgate its rules of procedure and exercise Chairman and Members, respectively, of the
such other powers or perform such functions or Constitutional Commissions, and they shall receive the
duties as may be provided by law (1987 same salary, which shall not be decreased during their
Constitution, Art. XI, Sec. 13[7]; see also RA 6770, term of office (1987 Philippine Constitution, Art. XI, Sec.
Sec. 18). 10).

NOTE: Ombudsman can investigate the acts of the Disqualifications and inhibitions
Supreme Court. (2003 Bar)
1. Shall not hold any other office or employment;
The powers of the Ombudsman are not merely 2. Shall not engage in the practice of any profession or
recommendatory. His office was given teeth to render in the active management or control of any business
this constitutional body not merely functional but also which in any way may be affected by the functions
effective. Under RA 6770 and the 1987 Constitution, the of his office;
Ombudsman has the constitutional power to directly 3. Shall not be financially interested, directly or
remove from government service an erring public official indirectly, in any contract with, or in any franchise
other than a member of Congress and the Judiciary. or privilege granted by the government, or any of its
(Estarija v. Ranada, G.R No. 159314, June 26, 2006) subdivisions, etc.
Shall not be qualified to run for any office in the
Effect of charges arising from same act/omission election immediately succeeding their cessation
lodged before the Ombudsman and regular courts from office (RA 6770, Sec. 9)

Administrative and criminal charges filed before the Scope of powers

Office of the Ombudsman and the trial court,
respectively, are separate and distinct from each other 1. The Ombudsman can investigate only officers of
even if they arise from the same act or omission. This is government owned corporations with original
because the quantum of proof required in criminal cases charters. (Khan, Jr v. Ombudsman, G.R. No. 125296,
is proof beyond reasonable doubt, while in July 20, 2006)
administrative cases, only substantial evidence is 2. The jurisdiction of the Ombudsman over
required. Moreover, the purpose of the administrative disciplinary cases involving public school teachers
proceedings is mainly to protect the public service, based has been modified by Sec. 9 of RA 4670 (Magna Carta
on the time-honored principle that a public office is a for Public School Teachers) which says that such
public trust. On the other hand, the purpose of the cases must first go to a committee appointed by the
criminal prosecution is the punishment of crime. Thus, Secretary of Education. (Ombudsman v. Estandarte,
even the dismissal of a criminal case does not necessarily G.R. 168670, April 13, 2007)
foreclose the administrative action against the 3. The Ombudsman Act authorizes the Ombudsman to
respondent. (Gonzales v. Serrano. G.R. No. 175433, March impose penalties in administrative cases.
11, 2015) (Ombudsman v. CA, G.R. No. 167844, Nov. 22, 2006;
Ombudsman v. Lucero, G.R. No. 168718 November 24,
Ombudsman’s fiscal autonomy 2006)

The Ombudsman shall enjoy fiscal autonomy. Its NOTE: According to Section 60 of the LGC, elective
approved annual appropriations shall be automatically officials may be dismissed only by the proper court.
and regularly released. (1987 Constitution, Sec. 14, Art. “Where the disciplining authority is given only the
XI) power to suspend and not the power to remove, it
should not be permitted to manipulate the law by
Term of office usurping the power to remove.” (Sangguniang
Barangay v. Punong Barangay, G.R. No. 170626,
7 years without reappointment. (1987 Constitution, Art. March 3, 2008)
XI, Sec. 11)
4. The Special Prosecutor may not file information
Qualifications of the Ombudsman and his Deputies without authority from the Ombudsman. (Perez v.
Sandigabayan, G.R. No. 166062, Sept. 26, 2006)
1. Natural born citizen of the Philippines; 5. The Ombudsman has been conferred rule making
2. At least 40 years of age at the time of appointment; power to govern procedures under it. (Buencamino
3. Of recognized probity and independence; v. CA, GR 175895, April 12, 2007)
4. Member of the Philippine Bar; 6. A preventive suspension will only last ninety (90)
5. Must not have been candidate for any elective office days, not the entire duration of the criminal case.
in the immediately preceding election; (Villasenor v. Sandiganbayan G.R. No. 180700, March
6. For Ombudsman: He must have been for ten years 4, 2008)
or more, a judge or engaged in the practice of law in 7. Section 14, first paragraph, of the Ombudsman Act,
the Philippines. which says, “No writ of injunction shall be issued by
any court to delay an investigation being conducted

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 LAW ON PUBLIC OFFICERS
by the Ombudsman under this Act, unless there is a The Ombudsman may still investigate even if the
prima facie evidence that the subject matter of the private complainants lack sufficient personal
investigation is outside the jurisdiction of the Office of interest in the subject matter of grievance
the Ombudsman” is DECLARED INEFFECTIVE until
SC issues a procedural rule on the matter. (Carpio- Section 20 of RA 6770 has been clarified by the Rules of
Morales v. CA, G.R. No. 217126-27, Nov. 10, 2015) Procedure of the Office of the Ombudsman. Under,
8. Section 14, second paragraph, of the Ombudsman Section 4, Rule III thereof, even if the ground raised is the
Act, which says, “No court shall hear any appeal or supposed lack of sufficient personal interest of
application for remedy against the decision or complainants in the subject matter of the grievance
findings of the Ombudsman, except the Supreme under Section 20(4) [RA 6770], the dismissal on that
Court, on pure question of law” is ground is not mandatory and is discretionary on the
UNCONSTITUTIONAL for it attempts to effectively part of the Ombudsman or Deputy Ombudsman
increase SC’s appellate jurisdiction without its evaluating the administrative complaint. The
advice and concurrence. (Carpio-Morales v. Binay, Jr., Ombudsman cannot be faulted for exercising its
ibid.) discretion under Section 20 of RA 6670, which allows the
Ombudsman to decide not to conduct the necessary
Delegability of the powers of the Ombudsman investigation of any administrative act or omission
complained of, if it believes that the complainant has no
The power to investigate or conduct a preliminary sufficient personal interest in the subject matter of the
investigation on any Ombudsman case may be exercised grievance. (Bueno v. Office of the Ombudsman, G.R. No.
by an investigator or prosecutor of the Office of the 191712, Sept. 17, 2014)
Ombudsman, or by any Provincial or City Prosecutor or
their assistants, either in their regular capacities or as ---
deputized Ombudsman prosecutors. (Honasan II v. Panel Q: Can the claim of confidentiality prevent the
of Investigators of the DOJ, G.R. No. 159747, June 15, 2004) Ombudsman from demanding the production of
documents needed for their investigation?
NOTE: While the Ombudsman’s power to investigate is
primary, it is not exclusive and, under the Ombudsman A: NO. In Almonte v. Vasquez, G.R. No. 95367, May 23,
Act of 1989, he may delegate it to others and take it back 1995, the Court said that where the claim of
any time he wants to. (Acop v. Ombudsman, G.R. No. confidentiality does not rest in the need to protect
120422, September 27, 1995) military, diplomatic or the national security secrets but
on general public interest in preserving confidentiality,
Power of the Ombudsman to directly dismiss a public the courts have declined to find in the Constitution an
officer absolute privilege even for the President.

Under Sec. 13(3) of Art. XI, the Ombudsman can only Moreover, even in cases where matters are really
recommend to the officer concerned the removal of a confidential, inspection can be done in camera.
public officer or employee found to be administratively ---
liable. (Tapiador v. Office of the Ombudsman, G.R. No.
129124. March 15, 2002). Be that as it may, the refusal, JUDICIAL REVIEW IN ADMINISTRATIVE
without just cause, of any officer to comply with such an PROCEEDINGS
order of the Ombudsman to penalize erring officer or
employee is a ground for disciplinary action. Thus, there Authority of the Ombudsman in reviewing
is a strong indication that the Ombudsman’s Administrative proceedings
recommendation is not merely advisory in nature but
actually mandatory within the bounds of law. This Sec. 19 of the Ombudsman Act further enumerates the
should not be interpreted as usurpation of the types of acts covered by the authority granted to the
Ombudsman of the authority of the head of office or any Ombudsman. The Ombudsman shall act on all complaints
officer concerned. It has long been settled that the power relating, but not limited to acts or omissions which:
of the Ombudsman to investigate and prosecute any 1. Are contrary to law or regulation;
illegal act or omission of any public official is not an 2. Are unreasonable, unfair, oppressive or
exclusive authority, but a shared or concurrent authority discriminatory;
in respect of the offense charged. (Ledesma v. CA, G.R. No. 3. Are inconsistent with the general course of an
161629, July 29, 2005) agency's functions, though in accordance with law;
4. Proceed from a mistake of law or an arbitrary
Power of the Military Deputy Ombudsman to ascertainment of facts;
investigate civilian police 5. Are in the exercise of discretionary powers but for
an improper purpose; or
Since the power of the Ombudsman is broad and the 6. Are otherwise irregular, immoral or devoid of
Deputy Ombudsman acts under the direction of the justification
Ombudsman, the power of the Military Deputy to
investigate members of the civilian police has also been In the exercise of its duties, the Ombudsman is given full
affirmed. (Acop v. Ombudsman, G.R. No. 120422, administrative disciplinary authority. His power is not
September 27, 1995) limited merely to receiving, processing complaints, or
recommending penalties. He is to conduct investigations,

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hold hearings, summon witnesses and require 1. Violations of the Anti-Graft and Corrupt Practices
production of evidence and place respondents under Act (RA 3019), RA 1379, Chapter II, Section 2, Title
preventive suspension. This includes the power to VII, Book II of the Revised Penal Code, and Executive
impose the penalty of removal, suspension, demotion, Order Nos. 1, 2, 14 and 14-A, issued in 1986.
fine, or censure of a public officer or employee. 2. The offender who violates RA 3019, RA 1379, the
(Ombudsman v. Galicia, G.R. No. 167711, Oct. 10, 2008) RPC provisions, and other offenses is a public
official or employee holding any of the positions
NOTE: Appeals from resolutions of the Office of the enumerated in par. a, Sec. 4, RA 8249.
Ombudsman in administrative disciplinary cases should 3. Other offenses or felonies whether simple or
be taken to the Court of Appeals via Petition for Review complexed with other crimes committed by the
under Rule 43 of the Rules of Court. (Fabian v. Desierto, public officials and employees in relation to their
G.R. No. 129742, Sept. 16, 1998) office (RA 10660).

JUDICIAL REVIEW IN PENAL PROCEEDINGS NOTE: In case private individuals are charged as co-
principals, accomplices or accessories with the public
Authority of the Ombudsman in reviewing penal officers or employees, they shall be tried jointly with said
proceedings public officers and employees. (PD 1606, Sec. 4)

In the exercise of its investigative power, the Court has Private persons may be charged together with public
consistently held that courts will not interfere with the officers to avoid repeated and unnecessary presentation
discretion of the fiscal or the Ombudsman to determine of witnesses and exhibits against conspirators in
the specificity and adequacy of the averments of the different venues, especially if the issues involved are the
offense charged. He may dismiss the complaint same. It follows therefore that if a private person may be
forthwith if he finds it to be insufficient in form and tried jointly with public officers, he may also be
substance or if he otherwise finds no ground to continue convicted jointly with them. (Balmadrid v.
with the inquiry; or he may proceed with the Sandiganbayan, G.R. No. L-58327 March 22, 1991)
investigation of the complaint if, in his view, it is in due
and proper form. [Ocampo v. Ombudsman, 225 SCRA 725 Determination of the jurisdiction of the
(1993)] Sandiganbayan

NOTE: In Garcia-Rueda v. Pascasio, G.R. No. 118141, It shall be determined by the allegations in the
September 5, 1997, the Court held that “while the information specifically on whether or not the acts
Ombudsman has the full discretion to determine complained of were committed in relation to the official
whether or not a criminal case is to be filed, the Court is functions of the accused. It is required that the charge be
not precluded from reviewing the Ombudsman’s action set forth with particularity as will reasonably indicate
when there is grave abuse of discretion.” that the exact offense which the accused is alleged to
have committed is one in relation to his office. (Lacson v.
SANDIGANBAYAN Executive Secretary¸G.R. No. 128096, Jan. 20, 1999)

Sandiganbayan is a special appellate collegial court in Voting Requirement

the Philippines. The special court was established by
Presidential Decree No. 1486, as subsequently modified All three members of a division shall deliberate on all
by Presidential Decree No. 1606 and by Republic Acts matters submitted for judgment, decision, final order or
numbered 7975 and 8249. resolution.

Composition of the Sandiganbayan The concurrence of a majority of the members of a

division shall be necessary to render a judgment,
Under PD 1606, as amended by RA 8249, further decision, or final order, or to resolve interlocutory or
amended by RA 10660, it is composed of: incidental motions (RA 10660).
1. Presiding Justice
2. Twenty Associate Justices, with the rank of Justice of Mandatory Suspension of a Public Officer Against
the Court of Appeals Whom a Valid Information is Filed

NOTE: It sits in 7 divisions with three members each. It is now settled that Sec. 13, RA 3019, makes it
mandatory for the Sandiganbayan to suspend any public
Nature of the Sandiganbayan officer against whom a valid information charging
violation of that law, or any offense involving fraud upon
Sandiganbayan is NOT a constitutional court. It is a the government or public funds or property is filed.
statutory court; that is, it is created not by the (Bolastig v. Sandiganbayan, G.R. No. 110503, August 4,
Constitution, but by statute, although its creation is 1994)
mandated by the Constitution.
NOTE: Under Sec. 13, RA 3019, any public officer against
Exclusive original jurisdiction of the Sandigabayan whom any criminal prosecution under a valid
information under this Act or under the provisions of the
Revised Penal Code on bribery is pending in court, shall

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 ADMINISTRATIVE LAW
be suspended from office. Should he be convicted by final transferees, shall not be barred by prescription, laches or
judgment, he shall lose all retirement or gratuity benefits estoppel," has already been settled in Presidential Ad Hoc
under any law, but if he is acquitted, he shall be entitled Fact-Finding Committee on Behest Loans v. Desierto. G.R.
to reinstatement and to the salaries and benefits which No. 130140, where the Court held that the above cited
he failed to receive during suspension, unless in the constitutional provision "applies only to civil actions for
meantime administrative proceedings have been filed recovery of ill-gotten wealth, and NOT to criminal cases.
against him. (Presidential Ad Hoc Fact- Finding Committee On Behest
Loans v. Desierto, G.R. No. 135715, April 13, 2011)
Appeal from a decision of the Sandiganbayan to the
SC
TERM LIMITS
The appellate jurisdiction of the Supreme Court over
decisions and final orders of the Sandiganbayan is (Correlate discussion on Term Limits under Local
limited to questions of law. (Cabaron v. People, G.R. No. Governments)
156981, Oct. 5, 2009)
Term vs. Tenure
ILL-GOTTEN WEALTH
TERM TENURE
Any asset, property, business enterprise or material The time during which the Represents the period
possession of any person within the purview of Sec. 2 of officer may claim to hold the during which the
RA 7080, acquired by him directly or indirectly through office as a right, and fixes the incumbent actually
dummies, nominees, agents, subordinates and/or interval after which the several holds the office;
business associates by any combination or series of the incumbents shall succeed one
following means or similar schemes: another;
1. Through misappropriation, conversion, misuse, or It is not affected by It may be shorter
malversation of public funds or raids on the public holding over of than term.
treasury; the incumbent
2. By receiving, directly or indirectly, any commission, after expiration
gift, share, percentage, kickbacks or any other form of the term for
of pecuniary benefit from any person and/or entity which he was
in connection with any government contract or appointed or
project or by reason of the office or position of the elected.
public officer concerned;
3. By the illegal or fraudulent conveyance or NOTE: Term of office is different from the right to hold
disposition of assets belonging to the National office. The latter is the just and legal claim to hold and
Government or any of its subdivisions, agencies or enjoy the powers and responsibilities of the office.
instrumentalities or government-owned-or- (Casibang v. Aquino, G.R. No. L-38025, Aug. 20, 1979)
controlled corporations and their subsidiaries;
4. By obtaining, receiving or accepting directly or Kinds of terms
indirectly any shares of stock, equity or any other
form of interest or participation including promise 1. Term fixed by law
of future employment in any business enterprise or 2. Term dependent on good behavior until reaching
undertaking; retirement age
5. By establishing agricultural, industrial or 3. Indefinite term, which terminates at the pleasure of
commercial monopolies or other combinations the appointing authority.
and/or implementation of decrees and orders (Borres v. CA, G.R. No. L-36845, Aug. 21, 1998)
intended to benefit particular persons or special
interests;
6. By taking undue advantage of official position, 3-Term Limit Rule
authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense The term of office of elective local officials,
and to the damage and prejudice of the Filipino except barangay officials, which shall be determined by
people and the Republic of the Philippines law, shall be three years and no such official shall serve
for more than three consecutive terms.
(RA 7080, “An Act Defining and Penalizing the Crime
of Plunder”). NOTE: Voluntary renunciation of the office for any
length of time shall not be considered as an interruption
Non-applicability of prescription, laches and in the continuity of his service for the full term for which
estoppel in criminal prosecution for the recovery of he was elected. (1987 Constitution, Art. X, Sec. 8)
ill-gotten wealth
For the three-term limit rule for elective local
The provision found in Sec. 15, Art. XI of the 1987 government officials to apply, two conditions or
Constitution that "the right of the State to recover requisites must concur, to wit: 1) that the official
properties unlawfully acquired by public officials or concerned has been elected for three consecutive terms
employees, from them or from their nominees or in the same local government post, and 2) that he has

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179 FACULTY OF CIVIL LAW
 POLITICAL LAW
fully served three consecutive terms. (Lonzanida v.
COMELEC, G.R. No. 135150, July 28, 1999) ADMINISTRATIVE LAW

Rationale: To prevent the establishment of political

dynasties and to enhance the freedom of choice of the
people. (Borja, Jr. v. COMELEC, G.R. No. 133495, Sept. 3, GENERAL PRINCIPLES
1998)

Hold-over Administrative Law

In the absence of an express or implied constitutional or It is a branch of public law fixing the organization and
statutory provision to the contrary, an officer is entitled determines the competence of administrative
to hold office until his successor is elected or appointed authorities, and indicates the individual remedies for the
and has qualified. (Lecaroz v. Sandiganbayan, G.R. No. violation of the rights. [Administrative Code, Sec. 2(3)]
130872, March 25, 1999)
Scope:
Term limits of elective officers
1. Fixes the administrative operation and structure of
1. President – 6 years, without re-election the government
2. Vice President – 6 years, with 1 re-election if 2. Executes or enforces that which is entrusted to
consecutive administrative authorities (all those public officers
3. Senators – 6 years, with 1 re-election if consecutive and organs of the government charged with the
4. Representative – 3 years, with 2 re-elections if amplification, application and execution of the law)
consecutive 3. Governs public officers and creates administrative
5. Local Executive Officials – 3 years, with 2 re- officers
elections if consecutive, in the same position 4. Provides remedies to those aggrieved by these
agencies
5. Governs Judicial Review
6. Includes rules, regulation, orders and decisions
made by administrative authorities
7. Includes the body of judicial doctrines on any of the
above

Classifications:

As to Source
Law that controls Law made by the
administrative administrative
authorities authorities
Constitution, statutes, General regulations and
judicial decisions, particular determinations;
Executive Orders, constitute under
Administrative Orders, delegations of power
etc. embodied in statutory
administrative law, and
imposing and constantly
expanding body of law.
As to Purpose
Adjective or Procedural Substantive
Administrative Law Administrative Law
Establishes the procedure Derived from same
which an agency must or sources but contents are
may follow in the pursuit different in that the law
of its legal purpose. establishes primary rights
and duties.

As to Applicability
General Administrative Special/ particular
Law Administrative Law

Part that is of general Part that pertains to

nature and common to all, particular service;
or most, administrative proceeds from the
agencies; chiefly but not particular statute creating

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 ADMINISTRATIVE LAW

exclusively procedural law. the individual agency. government or a distinct unit therein. (Administrative
Code, Sec. 2)

Department
Kinds:
An executive department created by law. [Administrative
1. Statutes setting up administrative authorities. Code of 1987, Sec. 2(7)]
2. Body of doctrines and decisions dealing with the
creation, operation, and effect of determinations Bureau
and regulations of such administrative authorities.
3. Rules, regulations, or orders of such administrative Any principal subdivision or unit of any department.
authorities in pursuance of the purposes, for which [Administrative Code, Sec. 2(8)]
administrative authorities were created or
endowed. Office
Example: Omnibus Rules Implementing the Labor
Code, circulars of Central Monetary Authority It refers to any major functional unit of a department or
4. Determinations, decisions, and orders of such bureau including regional offices. It may also refer to
administrative authorities in the settlement of any position held or occupied by individual persons,
controversies arising in their particular field. whose functions are defined by law or regulation
Example: Awards of NLRC with respect to money [Administrative Code, Sec. 2(9)].
claims of employees
MANNER OF CREATION

ADMINISTRATIVE AGENCIES Creation and Abolition of Office

The creation and abolition of public offices is primarily a

DEFINITION legislative function (Eugenio v. CSC, G.R. No. 115863,
March 31, 1995). However, the President may abolish an
It is an organ of government, other than a court and the office either from a valid delegation from Congress, or
legislature, which affects the rights of private parties his inherent duty to faithfully execute the laws. (Biraogo
either through adjudication or rule making. v. Philippine Truth Commission of 2010, G.R. No. 192935,
December 7, 2010)
Interpretation of the powers of the administrative
agencies Manner of creation

Administrative agencies have powers and functions 1. Constitutional provision

which may be administrative, investigatory, regulatory, 2. Authority of law
quasi-legislative, or quasi-judicial or mix of the five, as 3. Legislative enactment
may be conferred by the constitution or by the statute.
They have in fine only such powers or authority as are Reasons for the creation of administrative agencies
granted or delegated, expressly or impliedly, by law. And
in determining whether an agency has certain powers, 1. Help unclog court dockets
the inquiry should be from the law itself. But once 2. Meet the growing complexities of modern society
ascertained as existing, the authority given should be 3. Help in the regulation of ramified activities of a
liberally construed. (Soriano v. MTRCB, G.R. No. 165785, developing country
April 29, 2009)
Elements of a valid abolition of office
Instrumentality
1. In good faith; (good faith is presumed)
It refers “to any agency of the National Government, not 2. Not for political or personal reasons; and
integrated within the department framework, vested 3. Not in violation of law.
with special functions or jurisdiction by law, endowed
with some if not all corporate powers, administering NOTE: The Congress has the right to abolish an office
special funds and enjoying operational autonomy, even during the term for which an existing incumbent
usually through a charter. It includes regulatory may have been elected EXCEPT when restrained by the
agencies, chartered institutions and government-owned Constitution.
or controlled corporations.” (United Residents of
Dominican Hills v. Commission on the Settlement of Land Reorganization
Problems, G.R. No. 135945, March 7, 2001)
Reorganization involves the reduction of personnel,
Agency consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions. It alters the
Any of the various units of the government, including a existing structure of government offices or the units
department, bureau, office, instrumentality, or therein, including the lines of control, authority and
government-owned or controlled corporations, or a local responsibility between them to make the bureaucracy

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more responsive to the needs of the public clientele as ---
authorized by law. (Pan v. Pena G.R. No. 174244, Feb. 13, ---
2009) Q: Is the creation of the PTC justified by the
President’s power of control?
Circumstances that may be considered as evidence of
bad faith in a removal pursuant to reorganization, A: NO. Control is essentially the power to alter or modify
thus warranting reinstatement or reappointment or nullify or set aside what a subordinate officer had
done in the performance of his duties and to substitute
1. Where there is a significant increase in the number the judgment of the former with that of the latter.
of positions in the new staffing pattern of the Clearly, the power of control is entirely different from
department or agency concerned; the power to create public offices. The former is inherent
2. Where an office is abolished and other performing in the Executive, while the latter finds basis from either a
substantially the same functions is created; valid delegation from Congress, or his inherent duty to
3. Where incumbents are replaced by those less faithfully execute the laws (Cotiangco v. Province of
qualified in terms of status of appointment, Biliran, G.R. No. 157139, Oct. 19, 2011)
performance and merit; ---
4. Where there is reclassification of offices in the ---
department or agency concerned and the classified Q: What then could be the justification for the
offices perform substantially the same function as President’s creation of the PTC?
the original offices;
5. Where the removal violates the order of separation A: The creation of the PTC finds justification under Sec.
provided in Sec. 3 of R.A. 6656 (Cotiangco v. 17, Art. VII of the Constitution imposing upon the
Province of Biliran, G.R. No. 157139, Oct. 19, 2011) President the duty to ensure that the laws are faithfully
executed. The President’s power to conduct
--- investigations to aid him in ensuring the faithful
Q: President Aquino signed EO No. 1 establishing the execution of laws – in this case, fundamental laws on
Philippine Truth Commission of 2010 (PTC), an ad public accountability and transparency – is inherent in
hoc body with the primary task to investigate the President’s powers as the Chief Executive. That the
reports of graft and corruption. Biraogo asserts that authority of the President to conduct investigations and
the PTC is a public office and not merely an adjunct to create bodies to execute this power is not explicitly
body of the Office of the President. Thus, in order mentioned in the Constitution or in statutes does not
that the President may create a public office he must mean that he is bereft of such authority.
be empowered by the Constitution, a statute or an
authorization vested in him by law. He claims that The Executive is given much leeway in ensuring that our
Section 31 of the Administrative Code of 1987, laws are faithfully executed. The powers of the President
granting the President the continuing authority to are not limited to those specific powers under the
reorganize his office, cannot serve as basis for the Constitution. One of the recognized powers of the
creation of a truth commission considering the President granted pursuant to this constitutionally-
aforesaid provision merely uses verbs such as mandated duty is the power to create ad hoc committees.
reorganize, transfer, consolidate, merge, and abolish. This flows from the obvious need to ascertain facts and
Insofar as it vests in the President the plenary power determine if the laws have been faithfully executed. It
to reorganize the Office of the President to the extent should be stressed that the purpose of allowing ad hoc
of creating a public office, Section 31 is inconsistent investigating bodies to exist is to allow an inquiry into
with the principle of separation of powers enshrined matters which the President is entitled to know so that
in the Constitution and must be deemed repealed he can be properly advised and guided in the
upon the effectivity thereof. Does the creation of the performance of his duties relative to the execution and
PTC fall within the ambit of the power to reorganize enforcement of the laws of the land (Cotiangco v.
as expressed in Sec. 31 of the Revised Administrative Province of Biliran, ibid.)
Code? ---

A: NO. Reorganization refers to the reduction of NOTE: The SC, however, declared the creation of PTC as
personnel, consolidation of offices, or abolition thereof unconstitutional for violating the equal protection
by reason of economy or redundancy of functions. This clause.
refers to situations where a body or an office is already
existent but a modification or alteration thereof has to be KINDS
effected. The creation of an office is nowhere mentioned,
much less envisioned in said provision. To say that the Kinds of administrative bodies or agencies according
PTC is borne out of a restructuring of the Office of the to their purpose
President under Sec. 31 is a misplaced supposition, even
in the plainest meaning attributable to the term 1. Those created to function in situations where the
‘restructure’ and ‘alteration of an existing structure.’ government offers gratuity, grant, or special
Evidently, the PTC was not part of the structure of the privilege
Office of the President prior to the enactment of EO 1. Example: GSIS, SSS, PAO
(The Philippine Truth Commission of 2010 v. Lagman, G.R.
No. 192935, December 7, 2010)

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 ADMINISTRATIVE LAW
2. Those set up to function in situations where the when the law requires it). when the law does not
government seeks to carry on certain functions of require it).
government May be assailed in court Appealed to the Court of
Example: BIR, BOC, BOI through an ordinary Appeals via petition for
3. Those set up in situations where the government action. review (Rule 43).
performs business service for the public
Example: PNR, MWSS, NFA, NHA Non-similarity of functions and powers of
4. Those set up to function in situations where the administrative agencies
government seeks to regulate businesses imbued
with public interest Not all administrative agencies perform the same
Example: Insurance Commission, LTFRB, NTC functions or exercise the types of powers. While some
5. Those set up to function in situations where the act merely as investigative or advisory bodies, most
government seeks under the police power to administrative agencies have investigative, rule-making,
regulate private businesses and individuals and determinative functions, or at least two of such
Example: SEC, MTRCB functions.
6. Those agencies set up to function in situations
where the government seeks to adjust individual QUASI-LEGISLATIVE (RULE-MAKING) POWER
controversies because of strong social policy
involved Quasi-legislative power/Rule-Making
Example: NLRC, ECC, SEC
The exercise of delegated legislative power, involving no
discretion as to what the law shall be, but merely the
ADMINISTRATIVE AGENCIES authority to fix the details in the execution or
enforcement of a policy set out in the law itself.

Administrative power or function Legislative vs. Quasi-legislative power

Involves the regulation and control over the conduct and LEGISLATIVE QUASI-LEGISLATIVE
affairs of individuals for their own welfare and the
promulgation of rules and regulations to better carry out Determine what the law Determine how the
the policy of the legislature or such as are devolved upon shall be law shall be
the administrative agency by the organic law of its enforced
existence. (In re: Rodolfo U. Manzano, A.M. No. 88-7-1861-
Cannot be
RTC, October 5, 1988) Can be delegated
delegated
Powers of administrative agencies
Limitations to the exercise of quasi-legislative power
1. Discretionary – the law imposes a duty upon a public
1. Within the limits of the powers granted to
officer, and gives him the right to decide how or
administrative agencies.
when the duty shall be performed.
2. Cannot make rules or regulations which are
2. Ministerial – one which is as clear and specific as to
inconsistent with the provision of the Constitution
leave no room for the exercise of discretion in its
or statute.
performance.
3. Cannot defeat the purpose of the statute.
4. May not amend, alter, modify, supplant, enlarge, or
Basic powers of administrative agencies
limit the terms of the statute.
5. A rule or regulation must be uniform in operation,
1. Quasi-legislative power or rule-making power
reasonable and not unfair or discriminatory.
2. Quasi-judicial or adjudicatory power
3. Determinative power
Administrative rule
Quasi-legislative vs. Quasi-judicial power
Any agency statement of general applicability, which
implements or interprets a law fixes and describes
QUASI-LEGISLATIVE QUASI-JUDICIAL
procedures in, or practice requirements of, an agency,
Operates on the future Operates based on past
including its regulations. The term includes memoranda
facts
or statements concerning the internal administration or
General application Particular application management of an agency not affecting the rights of, or
(applies only to the procedure available to the public. [Administrative Code of
parties involved) 1987, Sec. 2 (2)]
May be assailed in court Only be challenged in
without subscribing to the court with prior Source of the power to promulgate administrative
doctrine of exhaustion of exhaustion of rules and regulations
administrative remedies administrative
(DEAR). remedies. Derived from the legislature, by virtue of a valid
Does not require prior Requires prior notice delegation, either express or implied.
notice and hearing (except and hearing (except

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Doctrine of Subordinate Legislation
Non-applicability of notice and hearing in the
Power of administrative agency to promulgate rules and issuance of an administrative rule or regulation
regulations on matters within their own specialization.
GR: An administrative body need not comply with the
Reason behind the delegation requirements of notice and hearing, in the performance
of its executive or legislative functions, such as issuing
It is well established in this jurisdiction that, while the rules and regulations. (Corona v. United Harbor Pilots
making of laws is a non-delegable activity that Association of the Philippines, G.R. No. 111963, December
corresponds exclusively to Congress, nevertheless the 12, 1997)
latter may constitutionally delegate authority to
promulgate rules and regulations to implement a given XPNs:
legislation and effectuate its policies, for the reason that The legislature itself requires it and mandates that the
the legislature often finds it impracticable (if not regulation shall be based on certain facts as determined
impossible) to anticipate and provide for the at an appropriate investigation. (Hon. Executive Secretary
multifarious and complex situations that may be met in v. Southwing Heavy Industries, Inc., G.R. No. 164171,
carrying the law into effect. All that is required is that: August 22, 2006)
(1) the regulation should be germane to the objects
and purposes of the law; The administrative rule goes beyond merely providing
(2) that the regulation be not in contradiction with for the means that can facilitate or render least
it, but conforms to the standards that the law cumbersome the implementation of the law but
prescribes substantially adds to or increases the burden of those
(People of the Philippines v. Exconde, G.R. No. L-9820, governed. (CIR v. CA, G.R. No. 11976, August 26, 1996)
August 30, 1957)
Filing of copies of administrative rules and
--- regulations before the UPLC
Q: Respondent was an operator of a domestic air
carrier primarily that of transporting live fish from Each agency must file with the Office of the National
Palawan to fish traders. Petitioner is the government Administrative Register (ONAR) of the University of the
agency responsible for the governance, Philippines Law Center three (3) certified copies of every
implementation, and policy direction of the Strategic rule adopted by it. Administrative issuances which are
Environment Plan (SEP) for Palawan pursuant to not published or filed with the ONAR are ineffective and
which Administrative Order No. 00-05 was issued. may not be enforced. (Administrative Code of 198, Sec. 3;
Said Order provided that only accredited domestic GMA v. MTRCB, G.R. No. 148579, February 5, 2007)
air carriers shall be allowed to operate as ‘common
carriers’ licensed under said rule. Respondent Publication requirement
assails the validity of A. O. No. 00-05 on the ground
that it was issued in excess of petitioner’s authority Required as a condition precedent to the effectivity of a
as an administrative agency. Was respondent’s law to inform the public of the contents of the law or
contention valid? rules and regulations before their rights and interests
are affected by the same. (Philippine International
A: NO. Petitioner’s issuance of the assailed order was Trading Corporation v. COA, G.R. No. 132593, June 25,
well within its statutory authority. Administrative 1999)
agencies possess two kinds of powers, the quasi-
legislative or rule-making power, and the quasi-judicial NOTE: If not otherwise required by law, an agency shall,
or administrative adjudicatory power. The first is the as far as practicable, publish or circulate notices of
power to make rules and regulations resulting from a proposed rules and afford interested parties the
valid delegated legislation that is within the confines of opportunity to submit their views prior to the adoption
the granting statute and in accord with the doctrine of of any rule. [1987 Administrative Code, Administrative
non-delegability and separability of powers. The second Procedure, Sec. 9(1)] (2000, 2009 Bar)
is the power to hear and determine questions of fact to
which the legislative policy is to apply and to decide in Exceptions to the requirement of publication
accordance with the standards laid down by the law 1. Interpretative regulations
itself in enforcing and administering the same law. 2. Internal regulations
Petitioner had the explicit authority to fill in the details 3. Letters of instructions
as to how to carry out or effectively implement the (Tañada v. Tuvera G.R. No. L-63915, December 29, 1986)
objectives of R.A. No. 7611 in protecting and enhancing
Palawan's natural resources consistent with the SEP. In Effectivity of administrative rules
fact, the petitioner was expressly given the authority to
impose penalties and sanctions in relation to the GR: Administrative rules take effect depending on the
implementation of the SEP and the other provisions of date provided by it.
R.A. No. 7611. (The Palawan Council for Sustainable
Development v. Ejercito Lim, G.R. No. 183173, August 24, XPN: If the administrative rule is silent on the matter of
2016) its date of effectivity, it shall take effect after 15 days
--- following the completion of their publication.

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 ADMINISTRATIVE LAW
2. Sufficient Standard Test - Statute fixes a standard,
mapping out the boundaries of the agency’s
Penal sanctions in administrative rules and authority to which it must conform
regulations
It lays down a sufficient standard when it
Requisites to be complied with: provides adequate guidelines or limitations in the law to
1. Law must declare the act punishable; map out the boundaries of the delegate’s authority and
2. Law must define the penalty; prevent the delegation from running riot. To be
3. Rules must be published in the Official Gazette or in sufficient, the standard must specify the limits of the
a newspaper of general circulation . delegate’s authority, announce the legislative policy and
(Hon. Secretary Perez v. LPG Refillers Association of the identify the conditions under which it is to be
Philippines, G.R. No. 159149, June 26, 2006) implemented. (ABAKADA Guro Party List v. Purisima, G.R.
No. 166715, August 14, 2008)
Authority of Administrative Officers to Interpret the
Law The administrative body may not make rules and
regulations which are inconsistent with the provisions of
Tasked to implement the law and authorized to interpret the Constitution or a statute, particularly the statute it is
it because they have the expertise to do so. administering or which created it, or which are in
derogation of, or defeat, the purpose of a statute. (Dagan
Contemporaneous Construction v. Philippine Racing Commission G.R. No. 175220,
February 12, 2009
The construction placed upon the statute by an executive
or administrative officer called upon to execute or QUASI-JUDICIAL (ADJUDICATORY) POWER
administer such statute.
Quasi-judicial power
Usually in the form of circulars, directives, opinions, and
rulings. Power of administrative authorities to make
determinations of facts in the performance of their
Effect of Administrative Interpretations to Courts official duties and to apply the law as they construe it to
the facts so found. It partakes the nature of judicial
They are not binding upon the courts. However, they are power, but exercised by a person other than a judge.
given great weight unless such construction is clearly
shown to be in sharp contrast with the governing law of Limited jurisdiction of quasi-judicial agencies
the state. (Nestle Philippines Inc. v. CA, G.R. No. 86738,
November 13, 1991) An administrative body could wield only such powers as
are specifically granted to it by its enabling statute. Its
KINDS OF ADMINISTRATIVE RULES AND jurisdiction is interpreted strictissimi juris.
REGULATIONS
Conditions for the Proper Exercise of Quasi-Judicial
1. Supplementary or detailed legislation Power
2. Interpretative legislation
3. Contingent legislation 1. Jurisdiction must be properly acquired by the
4. Procedural administrative body;
5. Interpretative 2. Due process must be observed in the conduct of the
6. Internal proceedings.
7. Penal
Classifications of Adjudicatory Powers
Administrative issuances according to their nature and
substance: 1. Enabling powers – Permits the doing of an act which
the law undertakes to regulate and which would be
1. Legislative Rule – It is in the matter of subordinate unlawful without governmental orders. It is
legislation, designed to implement a primary characterized by the grant or denial of permit or
legislation by providing the details thereof. authorization.
2. Interpretative rule – Provides guidelines to the law Example: Issuance of licenses to engage in a
which the administrative agency is in charge of particular business.
enforcing . 2. Directing powers – – Orders the doing or performing
(BPI Leasing v. CA, G.R. No. 127624, November 18, 2003) of particular acts to ensure the compliance with the
law and are often exercised for corrective purposes.
REQUISITES FOR VALIDITY Examples: public utility commissions, powers of
assessment under the revenue laws, reparations
Requisites for a valid delegation of quasi-legislative under public utility laws, and awards under
or rule-making power workmen’s compensation laws, and powers of
abstract determination such as definition-valuation,
1. Completeness Test - The statute is complete in itself, classification and fact finding
setting forth the policy to be executed by the agency

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3. Dispensing powers – Exemplified by the authority to process is the denial of the opportunity to be heard.
exempt from or relax a general prohibition, or (Flores v. Montemayor, G.R. No. 170146, June 6, 2011)
authority to relieve from an affirmative duty. Its
difference from licensing power is that dispensing Effect of Non-observance of Notice and Hearing
power sanctions a deviation from a standard.
4. Summary powers –Apply compulsion or force As a rule, it will invalidate the administrative
against person or property to effectuate a legal proceedings. A failure to comply with the requirements
purpose without a judicial warrant to authorize may result in a failure to acquire jurisdiction.
such action.
Examples: Abatement of nuisance, summary NOTE: Right to notice may be waived.
restraint, levy of property of delinquent taxpayers
5. Equitable powers –The power to determine the law Necessity of Notice and Hearing
upon a particular state of facts that has the right to,
and must, consider and make proper application of A hearing may take place after the deprivation occurs.
the rules of equity. What the law prohibits is not the absence of previous
Examples: Power to appoint a receiver, power to notice but the absolute absence thereof and the lack of
issue injunctions opportunity to be heard.
6. Examining powers– This is also called as
investigatory power. Requires production of books, NOTE: There has been no denial of due process if any
papers, etc., and the attendance of witnesses and irregularity in the premature issuance of the assailed
compelling the testimony. decision has been remedied by an order giving the
petitions the right to participate in the hearing of the MR.
ADMINISTRATIVE DUE PROCESS The opportunity granted by, technically, allowing
petitioners to finally be able to file their comment in the
Nature of administrative proceedings case, resolves the procedural irregularity previously
inflicted upon petitioners. (Nasecore v. ERC, G.R. No.
It is summary in nature. 190795, July 6, 2011)

Inapplicability of Technical Rules of Procedure and Exceptions to the Requirement of Notice and Hearing
Evidence in Administrative Proceedings
1. Urgency of immediate action
The technical rules of procedure and of evidence 2. Tentativeness of administrative action
prevailing in courts of law and equity are not controlling 3. Grant or revocation of licenses or permits to operate
in administrative proceedings to free administrative certain businesses affecting public order or morals
boards or agencies from the compulsion of technical 4. Summary abatement of nuisance per se which
rules so that the mere admission of matter which would affects safety of persons or property
be deemed incompetent in judicial proceedings would 5. Preventive suspension of public officer or employee
not invalidate an administrative order. facing administrative charges
6. Cancellation of a passport of a person sought for
Cardinal Requirements of Due Process in criminal prosecution
Administrative Proceedings (1994 Bar) 7. Summary proceedings of distraint and levy upon
property of a delinquent taxpayer
1. Right to a hearing which includes the right to 8. Replacement of a temporary or acting appointee
present one’s case and submit evidence in support 9. Right was previously offered but not claimed
thereof.
2. The tribunal must consider the evidence presented. Inapplicability of the Right to Counsel in
3. The decision must be supported by evidence. Administrative Inquiries
4. Such evidence must be substantial.
5. The decision must be rendered on the evidence The right to counsel which may not be waived, unless in
presented at the hearing or at least contained in the writing and in the presence of counsel, as recognized by
record, and disclosed to the parties affected. the Constitution, is a right of a suspect in a custodial
6. The tribunal or body or any of its judges must act on investigation. It is not an absolute right and may, thus, be
its own independent consideration of the law and invoked or rejected in criminal proceeding and, with
facts of the controversy in arriving at a decision. more reason, in an administrative inquiry. (Lumiqued v.
7. The board or body should render decision in such a Exevea, G.R No. 117565, November 18, 1997)
manner that parties can know the various issues
involved and the reasons for the decision rendered. Quantum of Proof Required in Administrative
(Ang Tibay v. CIR, G.R. No. L-46496, February 27, 1940). Proceedings

NOTE: The essence of due process in administrative Substantial evidence – that amount of relevant evidence
proceedings is the opportunity to explain one’s side or that a reasonable mind might accept as adequate to
seek a reconsideration of the action or ruling complained support a conclusion.
of. As long as the parties are given the opportunity to be
heard before judgment is rendered, the demands of due ADMINISTRATIVE APPEAL AND REVIEW
process are sufficiently met. What is offensive to due

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 ADMINISTRATIVE LAW
Administrative Appeal 1. Naturalization proceedings or those involving
citizenship and immigration;
Review by a higher agency of decisions rendered by an 2. Labor relations;
administrative agency, commenced by petition of an 3. Decisions affecting family relations, personal status
interested party. or condition, and capacity of persons.

NOTE: Under the 1987 Administrative Code, NOTE: It is well settled that findings of fact of quasi-
administrative appeals from a decision of an agency are judicial agencies, such as the COA, are generally accorded
taken to the Department Head, unless such appeal is respect and even finality by this Court, if supported by
governed by a special law. substantial evidence, in recognition of their expertise on
the specific matters under their jurisdiction. (Reyna v.
Administrative Review COA, G.R. No. 167219, February 8, 2011)

A superior officer or department head, upon his or her FACT-FINDING, INVESTIGATIVE, LICENSING AND
own volition, may review the decision of an RATE-FIXING POWERS
administrative agency or that of a subordinate’s decision
pursuant to the power of control. Fact-finding Power

It is, however, subject to the caveat that a final and a) Power to declare the existence of facts which call
executory decision is not included within the power of into operation the provisions of a statute;
control, and hence can no longer be altered by b) Power to ascertain and determine appropriate facts
administrative review. as a basis for procedure in the enforcement of
particular laws
Different Kinds of Administrative Appeal and Review
NOTE: The mere fact that an officer is required by law to
1. Inheres in the relation of administrative superior to inquire the existence of certain facts and to apply the law
administrative subordinate thereto in order to determine what his official conduct
2. Statutes which provide for determination to be shall be does not affect private rights do not constitute
made by a particular officer or body subject to an exercise of judicial powers. (Lovina v. Moreno, G.R. No.
appeal, review or redetermination by another L-17821, November 21, 1963)
officer or body in the same agency or in the same
administrative system. Exceptions to the Rule that Findings of Facts of
3. The statute makes or attempts to make a court a Administrative Agencies are Binding on the Courts
part of the administrative scheme by providing in
terms or effect that the court, on review of the 1. Findings are vitiated by fraud, imposition, or
action of an administrative agency. collusion
4. The statute provides that an order made by a 2. Procedure which led to factual findings is irregular
division of a commission or board has the same 3. Palpable errors are committed
force and effect as if made by the subject to a 4. Factual findings not supported by evidence
rehearing by the commission. 5. Grave abuse of discretion, arbitrariness, or
5. The statute provides for an appeal to an officer on capriciousness is manifest
an appeal to the head of the department or agency. 6. When expressly allowed by statute
6. Statutes which provide for appeal at the highest 7. Error in appreciation of the pleadings and in the
level namely, the president interpretation of the documentary evidence
(De Leon, page 311). presented by the parties

Enforcement of Administrative Decisions Fact-finding Quasi-judicial Body

1. As provided for by law A fact-finding quasi-judicial body (e.g., Land

2. Through the court’s intervention Transportation Franchising and Regulatory Board)
whose decisions (on questions regarding certificate of
ADMINISTRATIVE RES JUDICATA public convenience) are influenced not only by the facts
as disclosed by the evidence in the case before it but also
Non-applicability of the Doctrine of Res Judicata by the reports of its field agents and inspectors that are
periodically submitted to it, has the power to take into
The doctrine of res judicata applies only to judicial or consideration the result of its own observation and
quasi-judicial proceedings and not to the exercise of investigation of the matter submitted to it for decision, in
purely administrative functions. Administrative connection with other evidence presented at the hearing
proceedings are non-litigious and summary in nature; of the case. (Pantranco South Express, Inc. v Board of
hence, res judicata does not apply. (Nasipit Lumber Transportation, G.R. No. L-49664, November 22, 1990)
Company, Inc. v. NLRC, G.R. No. 54424, August 31, 1989)
Investigatory Power
Exceptions to the Non-Applicability of Res Judicata in
Administrative Proceedings Power to inspect, secure, or require the disclosure of
information by means of accounts, records, reports,

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187 FACULTY OF CIVIL LAW
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statements and testimony of witnesses. It is implied and notice and hearing. [1987 Administrative Code, Sec. 17(2),
not inherent in administrative agencies. Administrative Procedure]

Power to issue subpoena not inherent in Nature of an administrative agency’s act if it is

administrative bodies empowered by a statute to revoke a license for non-
compliance or violation of agency regulations
It is settled that these bodies may summon witnesses
and require the production of evidence only when duly Where a statute empowers an agency to revoke a license
allowed by law, and always only in connection with the for non-compliance with or violation of agency
matter they are authorized to investigate. regulations, the administrative act is of a judicial nature,
since it depends upon the ascertainment of the existence
Power to cite a person in contempt not inherent in of certain past or present facts upon which a decision is
administrative bodies to be made and rights and liabilities determined.

It must be expressly conferred upon the body, and Rate

additionally, must be used only in connection with its
quasi-judicial as distinguished from its purely It means any charge to the public for a service open to all
administrative or routinary functions. and upon the same terms, including individual or joint
rates, tolls, classification or schedules thereof, as well as
NOTE: If there is no express grant, the agency must communication, mileage, kilometrage and other special
invoke the aid of the RTC under Rule 71 of the Rules of rates which shall be imposed by law or regulation to be
Court. observed and followed by a person. [1987 Administrative
Code, Administrative Procedure, Sec. 2(3)]
---
Q: May administrative agencies issue warrants of Rate-fixing power
arrest or administrative searches?
Power usually delegated by the legislature to
A: GR: No. Under the 1987 Constitution, only a judge administrative agencies for the latter to fix the rates
may issue warrants. which public utility companies may charge the public.

XPN: In cases of deportation of illegal and undesirable NOTE: The power to fix rates is essentially legislative but
aliens, whom the President or the Commissioner of may be delegated. (Philippine Inter-Island v. CA, G.R. No.
Bureau of Immigration and Deportation may order 100481, Jan. 22, 1997)
arrested following a final order of deportation. (Salazar
v. Achacoso, G.R. No. 81510, March 14, 1990) The legislature may directly provide for these rates,
--- wages, or prices. But while the legislature may deal
directly with these subjects, it has been found more
Licensing power advantageous to place the performance of these
functions in some administrative agency. The need for
The action of an administrative agency in granting or dispatch, for flexibility and technical know-how is better
denying, or in suspending or revoking, a license, permit, met by entrusting the rate-fixing to an agency other than
franchise, or certificate of public convenience and the legislature itself. (Cortes, 1963)
necessity.
Rate-fixing procedure
License
The administrative agencies perform this function either
Includes the whole or any part of any agency’s permit, by issuing rules and regulations in the exercise of their
certificate, passport, clearance, approval, registration, quasi-legislative power or by issuing orders affecting a
charter, membership, statutory exemption or other form specified person in the exercise of its quasi-judicial
of permission, or regulation of the exercise of a right or power.
privilege. [1987 Administrative Code, Sec. 2(10),
Administrative Procedure] NOTE: In the fixing of rates, no rule or final order shall
be valid unless the proposed rates shall have been
Licensing published in a newspaper of general circulation at least 2
weeks before the first hearing thereon. [1987
Includes agency process involving the grant, renewal, Administrative Code, Administrative Procedure, Sec. 9(2)]
denial, revocation, suspension, annulment, withdrawal, (2000, 2009 Bar)
limitation, amendment, modification or conditioning of a
license. [1987 Administrative Code, Sec. 2(11), Requirements for the delegation of the power to
Administrative Procedure] ascertain facts to be valid

NOTE: Except in cases of willful violation of pertinent The law delegating the power to determine some facts or
laws, rules and regulations or when public security, state of things upon which the law may take effect or its
health, or safety requires otherwise, no license may be operation suspended must provide the standard, fix the
withdrawn, suspended, revoked or annulled without limits within which the discretion may be exercised, and

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 ADMINISTRATIVE LAW
define the conditions therefor. Absent these NOTE: The mere silence of the law does not necessarily
requirements, the law and the rules issued thereunder imply that judicial review is unavailable.
are void, the former being an undue delegation of
legislative power and the latter being the exercise of Requisites of Judicial Review of Administrative
rule-making without legal basis. (U.S. v. Ang Tang Ho, G.R. Action
No. L-17122, February 27, 1992) 1. Principle of finality of administrative action -
Administrative action must have been completed
Standard required on delegated power to fix rates 2. Principle of exhaustion of administrative remedies -
Administrative remedies must have been exhausted
That the rate be reasonable and just. (American Tobacco
Co. v. Director of Patents, G.R. No. L-26803, October 14, Limitations on Judicial Review
1975)
1. Final and executory decisions cannot be made the
In any case, the rates must both be non-confiscatory and subject of judicial review.
must have been established in the manner prescribed by 2. Administrative acts involving a political question
the legislature. Even in the absence of an express are beyond judicial review, except when there is an
requirement as to reasonableness, this standard may be allegation that there has been grave abuse of
implied. A rate-fixing order, though temporary or discretion.
provisional it may be, is not exempt from the procedural 3. Courts are generally bound by the findings of fact of
requirements of notice and hearing when prescribed by an administrative agency.
statute, as well as the requirement of reasonableness.
(Philippine Communications Satellite Corporation v. NTC, NOTE: Courts will not render a decree in advance of
G.R. No. 84818, December 18, 1989) administrative action. Such action would be rendered
nugatory.
Re-delegating power to fix rates is prohibited
It is not for the court to stop an administrative officer
The power delegated to an administrative agency to fix from performing his statutory duty for fear that he will
rates cannot, in the absence of a law authorizing it, be perform it wrongly.
delegated to another. This is expressed in the maxim,
potestas delagata non delegari potest. (Kilusang Mayo Doctrine of Ripeness for Review (2001 Bar)
Uno Labor Center v. Garcia, Jr., G.R. No. 115381, December
23, 1994) It is similar to that of exhaustion of administrative
remedies except that it applies to the rule-making power
POWER TO FIX RATES POWER TO FIX RATE and to administrative action which is embodied neither
EXERCISED AS A EXERCISED AS A QUASI- in rules and regulations nor in adjudication or final
LEGISLATIVE FUNCTION JUDICIAL FUNCTION order.
Rules and/or rates laid Rules and the rate imposed
down are meant to apply apply exclusively to a Purpose of the Doctrine of Ripeness of Review
to all enterprises particular party
Prior notice and hearing Prior notice and hearing 1. To prevent the courts, through avoidance of
to the affected parties is are essential to the validity premature adjudication, from entangling
not a requirement, except of such rates. But an themselves in abstract disagreements over
where the legislature administrative agency may administrative policies
itself requires it. be empowered by law to 2. To protect the agencies from judicial interference
approve provisionally, until an administrative decision has been formalized
when demanded by urgent and its effects felt in a concrete way by the
public need, rates of public challenging parties
utilities without a hearing. (Abbott Laboratories v. Gardner, 387 U.S. 136, 1967).

Application of the Doctrine of Ripeness of Review

1. When the interest of the plaintiff is subjected to or

JUDICIAL RECOURSE AND REVIEW imminently threatened with substantial injury.
2. If the statute is self-executing.
3. When a party is immediately confronted with the
Judicial Review problem of complying or violating a statute and
there is a risk of criminal penalties.
Re-examination or determination by the courts in the 4. When plaintiff is harmed by the vagueness of the
exercise of their judicial power in an appropriate case statute.
instituted by a party aggrieved thereby as to whether the
questioned act, rule, or decision has been validly or Two Tests to Determine Whether or Not a
invalidly issued or whether the same should be nullified, Controversy is Ripe For Adjudication
affirmed or modified.
1. Fitness of the issue for judicial decision

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1. By the court's determination, the legislature did not
2. Hardship to the parties of withholding court intend that the issues be left solely to the initial
consideration determination of the administrative body.
(Abbott Laboratories v. Gardner, ibid.) 2. The issues involve purely questions of law.
3. Courts and administrative bodies have concurrent
Questions Reviewable by the Courts jurisdiction.

1. Questions of fact Exceptions to the Doctrine of Primary Jurisdiction

GR: Courts will not disturb the findings of
administrative agencies acting within the 1. Where there is estoppel on the part of the party
parameters of their own competence, special invoking the doctrine
knowledge, expertise, and experience. The courts 2. Where the challenged administrative act is patently
ordinarily accord respect if not finality to factual illegal, amounting to lack of jurisdiction
findings of administrative tribunals. 3. Where there is unreasonable delay or official
XPN: If findings are not supported by inaction that will irretrievably prejudice the
substantial evidence. complainant
2. Questions of Law – administrative decisions may be 4. Where the amount involved is relatively small so as
appealed to the courts independently of legislative to make the rule impractical and oppressive
permission. It may be appealed even against
5. Where the question involved is purely legal and will
legislative prohibition because the judiciary cannot
ultimately have to be decided by the courts of justice
be deprived of its inherent power to review all
decisions on questions of law.
6. Where judicial intervention is urgent
3. Mixed (law and fact) – when there is a mixed 7. When its application may cause great and
question of law and fact and the court cannot irreparable damage
separate the elements to see clearly what and where 8. Where the controverted acts violate due process
the mistake of law is, such question is treated as 9. When the issue of non-exhaustion of administrative
question of fact for purposes of review and the remedies has been rendered moot
courts will not ordinarily review the decision of the 10. When there is no other plain, speedy and adequate
administrative tribunal. remedy
11. When strong public interest is involved
DOCTRINE OF PRIMARY ADMINISTRATIVE 12. In quo warranto proceedings
JURISDICTION (The Province of Aklan v. Jody King Construction and
Development Corp., G.R. Nos. 197592 & 202623, November
Doctrine of Primary Jurisdiction or Doctrine of Prior 27, 2013)
Resort (1996 Bar)
Raising the Issue of Primary Jurisdiction
Under the principle of primary jurisdiction, courts
cannot or will not determine a controversy involving The court may motu proprio raise the issue of primary
question within the jurisdiction of an administrative jurisdiction and its invocation cannot be waived by the
body prior to the decision of that question by the failure of the parties to argue it, as the doctrine exists for
administrative tribunal where the: the proper distribution of power between judicial and
1. Question demands administrative determination administrative bodies and not for the convenience of the
requiring special knowledge, experience and parties. In such case the court may:
services of the administrative tribunal; 1. Suspend the judicial process pending referral of
2. Question requires determination of technical and such issues to the administrative body for its
intricate issues of a fact; review; or
3. Uniformity of ruling is essential to comply with 2. If the parties would not be unfairly disadvantaged,
purposes of the regulatory statute administered dismiss the case without prejudice.
(Euro-Med Laboratories Phil. v. Province of Batangas, G.R
NOTE: In such instances, relief must first be obtained in No. 148106, July 17, 2006)
administrative proceeding before a remedy will be
supplied by the courts even though the matter is within Applicability of the Doctrine of Primary Jurisdiction
the proper jurisdiction of a court. The judicial process is
accordingly suspended pending referral of the claim to
the administrative agency for its view. In recent years, it has been the jurisprudential trend to
apply this doctrine to cases involving matters that
Rationale: demand the special competence of administrative
agencies even if the question involved is also judicial in
1. To take full advantage of administrative expertness character. It applies where a claim is originally
2. To attain uniformity of application of regulatory cognizable in the courts, and comes into play whenever
laws which can be secured only if determination of enforcement of the claim requires the resolution of
the issue is left to the administrative body issues which, under a regulatory scheme, have been
placed within the special competence of an
Instances Where the Doctrine Finds No Application administrative body; in such case, the judicial process is
suspended pending referral of such issues to the

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administrative body for its view. (Villaflor v. Court of A: NO. The CA erred in ruling that Petitioner’s funds
Appeals, G.R. No. 95694, October 9, 1997) could be the proper subject of a writ of execution or
garnishment. The settlement of the monetary claim was
--- still subject to the primary jurisdiction of the COA
Q: A civil case for the collection of sum of money was despite the final decision of the RTC having already
filed by X Company against the province of Batangas validated the claim. The funds of Petitioner are
before the RTC. After the petitioner’s presentation of government funds that are public in character, including
evidence, the province of Batangas moved for the any interest accruing from the deposit of such funds in
dismissal of the case on the ground that it is the any banking institution, which constitute a "special trust
Commission on Audit which has primary jurisdiction fund," the disbursement of which should always be
over the matter for it involves transactions with the subject to auditing by the COA. As such, the private
province which was governed by the Local claimants had no alternative except to first seek the
Government Code provisions and COA rules and approval of the COA of their monetary claim. Trial judges
regulations on supply and property management in should not immediately issue writs of execution or
local governments. Is the contention of the province garnishment against the Government or any of its
of Batangas correct? subdivisions, agencies and instrumentalities to enforce
money judgments. It is settled jurisprudence that upon
A: YES. It is the COA and not the RTC which has primary determination of State liability, the prosecution,
jurisdiction to pass upon petitioner’s money claim enforcement or satisfaction thereof must still be pursued
against respondent local government unit. Such in accordance with the rules and procedures laid down
jurisdiction may not be waived by the parties’ failure to in P.D. No. 1445, otherwise known as the Government
argue the issue nor active participation in the Auditing Code of the Philippines which pertains to COA’s
proceedings. The doctrine of primary jurisdiction holds primary jurisdiction to examine, audit and settle all
that if a case is such that its determination requires the claims of any sort due from the Government or any of its
expertise, specialized training and knowledge of an subdivisions, agencies and instrumentalities. Rejection of
administrative body, relief must first be obtained in an the claim will authorize the claimant to elevate the
administrative proceeding before resort to the courts is
had even if the matter may well be within their proper
jurisdiction. It applies where a claim is originally matter to the Supreme Court on certiorari and in effect,
cognizable in the courts and comes into play whenever sue the State thereby. (University of the Philippines v.
enforcement of the claim requires the resolution of Dizon, G.R. No. 171182 , August 23, 2012)
issues which, under a regulatory scheme, have been ---
placed within the special competence of an
administrative agency. In such a case, the court in which DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE
the claim is sought to be enforced may suspend the REMEDIES
judicial process pending referral of such issues to the
administrative body for its view or, if the parties would Doctrine of Exhaustion of Administrative Remedies
not be unfairly disadvantaged, dismiss the case without (1996, 1998, 2000, 2015 Bar)
prejudice. (Euro-Med Laboratories Phil. Inc. v. Province of
Batangas, G.R. No. 148106, July 17, 2006) It calls for resorting first to the appropriate
--- administrative authorities in the resolution of a
--- controversy falling under their jurisdiction and must
Q: Petitioner university contracted the services of first be appealed to the administrative superiors up to
Stern Builders Corporation for the construction and the highest level before the same may be elevated to the
renovation of its buildings in UP Los Banos. In an courts of justice for review.
action filed by Stern Builder against petitioner, the
RTC rendered a favorable judgment and granted the Premature invocation of court intervention is fatal to
motion for execution filed therewith by Stern one’s cause of action. Exhaustion of administrative
Builders. Consequently, the sheriff served notices of remedies is a prerequisite for judicial review; it is a
garnishment on the petitioner’s depository banks. condition precedent which must be complied with.
Petitioner filed an urgent motion to quash the
notices of garnishment; and a motion to quash the Rationale:
writ of execution on the ground that government
funds and properties could not be seized by virtue of 1. To enable the administrative superiors to correct
writs of execution or garnishment except in the errors committed by their subordinates.
pursuance of an appropriation law or other specific 2. Courts should refrain from disturbing the findings of
statutory authority. However RTC, through administrative bodies in deference to the doctrine of
respondent Judge, authorized the release of the separation of powers.
garnished funds of the UP. CA upheld RTC’s judgment 3. Courts should not be saddled with the review of
and the issuance of the writ of garnishment of administrative cases.
petitioner’s funds. Was the appellate court correct in 4. Judicial review of administrative cases is usually
sustaining RTC’s jurisdiction to issue the writ of effected through special civil actions which are
garnishment against petitioner? available only if there is no other plain, speedy, and
adequate remedy.

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5. To avail of administrative remedy entails lesser implementing a rate increase greater than 60% of
expenses and provides for a speedier disposition of current rate and failing to conduct public hearing for
controversies. the imposed rate of ₱90. ALWAD filed a Motion to
Dismiss for failure to exhaust administrative remedy
Exceptions to the Application of the Doctrine (1991, under PD 198 as amended. One of the respondents
2000, 2004 Bar) then questioned the legality of the water rate
increase before the National Water Resources Board
1. Violation of due process (NWRB). RTC denied ALWAD’s Motion to Dismiss. On
2. When there is estoppel on the part of the appeal, CA affirmed the RTC. Does RTC have
administrative agency concerned jurisdiction over the matter?
3. When the issue involved is a purely legal question
4. When there is irreparable injury A: YES. The failure to exhaust administrative remedy
5. When the administrative action is patently illegal does not affect the RTC’s jurisdiction. Non-exhaustion of
amounting to lack or excess of jurisdiction administrative remedies only renders the action
6. When the respondent is a Department Secretary premature, that the cause of action is not ripe for judicial
whose acts as an alter ego of the President bears the determination. It is incumbent upon the party who has
implied and assumed approval of the latter an administrative remedy to pursue the same to its
7. When the subject matter is a private land case appropriate conclusion before seeking judicial
proceedings intervention. Although the doctrine of exhaustion does
8. When it would be unreasonable not preclude in all cases a party from seeking judicial
9. When no administrative review is provided by law relief, cases where its observance has been disregarded
10. When the rule does not provide a plain, speedy, and require a strong showing of the inadequacy of the
adequate remedy prescribed procedure and of impending harm. (Merida
11. When the issue of non-exhaustion of administrative Water District v. Bacarro, G.R. No. 165993, September 30,
remedies has been rendered moot 2008)
12. When there are circumstances indicating the ---
urgency of judicial intervention ---
13. When it would amount to a nullification of a claim; Q: Deputy Ombudsman Katerina Sanchez was
and dismissed by the Office of the President on the
14. Where the rule on qualified political agency applies ground of betrayal of public trust and a disciplinary
(Laguna CATV Network v. Maraan, G.R. No. 139492, proceeding against Special Prosecutor Miranda
November 19, 2002) Ramos is pending before the OP. For this reason,
Sanchez and Ramos challenged the constitutionality
Effect of Non-exhaustion of Administrative Remedies of Section 8(2) of R.A. 6770 or The Ombudsman Act
of 1989 regarding the president’s disciplinary
Failure to observe the doctrine of exhaustion of jurisdiction over a deputy ombudsman and a special
administrative remedies does not affect the jurisdiction prosecutor. The Supreme Court rendered its decision
of the Court. The only effect of non-compliance with this upholding the constitutionality of the said law and
rule is that it will deprive the complainant of a cause of ordered the reinstatement of Sanchez. As regards
action, which is a ground for a motion to dismiss. If not Ramos, the Court ruled that the disciplinary
invoked at the proper time, this ground is deemed proceeding against her should be continued because
waived and the court can take cognizance of the case and Section 8(2) of R.A. No. 6770 is not unconstitutional.
try it. (Republic v. Sandiganbayan, G.R. Nos. 112708-09, Only the OP, through the OSG moved for the
March 29, 1996) reconsideration of the Court’s ruling. What then is
the effect of the absence of motion for
Effect of Non-compliance reconsideration on the part of Sanchez and Ramos?

Non-compliance with the doctrine of primary A: NONE. The omission of the filing of a motion for
jurisdiction or doctrine of exhaustion of administrative reconsideration poses no obstacle for the Court’s review
remedies is not jurisdictional for the defect may be of its ruling on the whole case since a serious
waived by a failure to assert the same at the earliest constitutional question has been raised and is one of the
opportune time. underlying bases for the validity or invalidity of the
presidential action. If the President does not have any
--- constitutional authority to discipline a Deputy
Q: Alicia Water District (ALWAD), a GOCC that Ombudsman and/or a Special Prosecutor in the first
operates water utility services conducted public place, then any ruling on the legal correctness of the OP’s
hearing for the purpose of increasing the water rate. decision on the merits will be an empty one. In other
They subsequently received a letter from the Local words, since the validity of the OP’s decision on the
Water Utilities Administration (LWUA) confirming merits of the dismissal is inextricably anchored on the
the proposed water rates. ALWAD issued a final and correct ruling on the constitutional issue, the
resolution implementing the water rate increase of whole case – including the constitutional issue – remains
P90 for the first ten cubic meters of water alive for the Court’s consideration on motion for
consumption. Because of this, consumers filed a reconsideration. (Emilio A. Gonzales III v. Office of the
Petition for Injunction against the petitioner before President/Wendell Bareras-Sulit v. Atty. Paquito N. Ochoa,
the RTC alleging that ALWAD violated LOI 700 by Jr., G.R. No. 196231/G.R. No. 196232, January 28, 2014)

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 ELECTION LAW
4. Order is not reviewable in any other way and the
--- complainant will suffer great and obvious damage if
the order is carried out
Doctrine of Primary Jurisdiction vs. Doctrine of 5. Interlocutory order affects the merits of a
Exhaustion of Administrative Remedies controversy
6. Order made in excess of power, contrary to specific
DOCTRINE OF prohibition in the statute governing the agency and
DOCTRINE OF
EXHAUSTION OF thus operating as a deprivation of a right assured by
PRIMARY
ADMINISTRATIVE the statute
JURISDICTION
REMEDIES 7. When review is allowed by statutory provisions.
Both deal with the proper relationships between the
courts and administrative agencies. NOTE: Appeal to the CA is allowed because a quasi-
judicial agency is equivalent in rank with the RTC. (Rules
Case is within the Claim is cognizable in the of Court, Rule 43)
concurrent jurisdiction first instance by an
of the court and an administrative agency
administrative agency alone
but the determination of ELECTION LAW
the case requires the
technical expertise of the
administrative agency

Although the matter is Judicial interference is SUFFRAGE

within the jurisdiction of withheld until the
the court, it must yield to administrative process
the jurisdiction of the has been completed Suffrage is the right to vote in the election of officers
administrative agency chosen by the people and in the determination of
questions submitted to the people. It includes election,
NOTE: The general rule is that before a party may seek plebiscite, initiative and referendum. [NACHURA (2009),
the intervention of the court, he should first avail of all supra at 513]
the means afforded him by administrative processes. The
issues which administrative agencies are authorized to Right of suffrage not absolute
decide should not be summarily taken from them and
submitted to a court without first giving such The exercise of the right of suffrage is subject to existing
administrative agency the opportunity to dispose of the substantive and procedural requirements embodied in
same after due deliberation. our Constitution, statute books and other repositories of
law (Akbayan-Youth v. COMELEC, G.R. No. 147066, March
Corollary to the doctrine of exhaustion of administrative 26, 2001).
remedies is the doctrine of primary jurisdiction; that is,
courts cannot or will not determine a controversy Election
involving a question which is within the jurisdiction of
the administrative tribunal prior to the resolution of that Election is the means by which people choose their
question by the administrative tribunal, where the officials for a definite and fixed period and to whom they
question demands the exercise of sound administrative entrust for the time being the exercise of the powers of
discretion requiring the special knowledge, experience government. [NACHURA (2009), supra at 513]
and services of the administrative tribunal to determine
technical and intricate matters of fact. (Republic v. Lacap, Components of an election
G.R. No. 158253, March 2, 2007)
1. Choosing or selecting candidates to public office by
DOCTRINE OF FINALITY OF popular vote;
ADMINISTRATIVE ACTION 2. Holding of electoral campaign;
3. Conducting of the polls;
It provides that no resort to courts will be allowed unless 4. Listing of votes;
administrative action has been completed and there is 5. Casting and receiving the ballots from the voters;
nothing left to be done in the administrative structure. 6. Counting the ballots;
7. Making the election returns; and
Instances where the doctrine finds no application 8. Proclaiming the winning candidates

1. Grant of relief to preserve the status quo pending Kinds of elections

further action by the administrative agency
2. Essential to the protection of the rights asserted There are two kinds of elections:
from the injuries threatened 1. Regular election – an election participated in by
3. Administrative officer assumes to act in violation of those who possess the right of suffrage, not
the Constitution and other laws otherwise disqualified by law, and are registered
voters.

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NOTE: The SK election is not a regular election
because the latter is participated in by youth with QUALIFICATION AND
ages ranging from 15-21 (now 15-30 per RA DISQUALIFICATION OF VOTERS
10742), some of whom are not qualified voters to
elect local or national elective officials. (Paras v.
COMELEC, G.R. No. 123169, November 4, 1996) Qualifications for the exercise of suffrage

2. Special election – held when there is failure of 1. Filipino citizenship;

election on the scheduled date of regular election in 2. At least 18 years of age;
a particular place or to fill a vacancy in office before 3. Resident of the Philippines for at least one year;
the expiration of the term for which the incumbent 4. Resident of the place where he proposes to vote for
was elected. at least 6 months immediately preceding the
election; and
Scope of Suffrage 5. Not otherwise disqualified by law. (1987
Constitution, Art. V, Sec. 1)
1. Plebiscite - electoral process by which an initiative
on the Constitution is approved or rejected by the NOTE: These qualifications are continuing requirements.
people. Congress may not add qualifications but can provide for
procedural requirements and disqualifications. However,
2. Initiative - the power of the people to propose the disqualifications must not amount to qualifications.
amendments to the Constitution or to propose and
enact legislations through election called for the Disqualifications for the exercise of suffrage
purpose. [R.A. 6735, The Initiative and Referendum
Act, Sec. 3(a)] 1. Sentenced by final judgment to suffer imprisonment
a. Initiative on the Constitution for not less than one (1) year, unless pardoned or
b. Initiative on Statutes granted amnesty;
c. Initiative on Local Legislation 2. Conviction by final judgment of any of the following:
a. Crime involving disloyalty to the government;
3. Referendum - power of the electorate to approve or b. Violation against national security; and
reject a piece of legislation through an election c. Firearms laws
called for the purpose.
i. Referendum on Statutes NOTE: The right to vote is reacquired upon
Referendum on Local Laws expiration of 5 years after service of sentence
4. Recall - mode of removal of an elective public officer referred to in the two preceding items.
by the people before the end of his term of office.
3. Insanity or incompetence declared by competent
Rules on construction of election laws authority. (OEC, Art. XII, Sec. 118)

CONSTRUCTION OF ELECTION LAW Residence and domicile

Laws for conduct of Before the election:
elections Mandatory In election cases, the Court treats domicile and residence
After the election: as synonymous terms. Both import not only an intention
Directory to reside in a fixed place but also personal presence in
that place, coupled with conduct indicative of such
Laws for Mandatory and strictly intention. (Pundaodaya v. COMELEC, G.R. No. 179313,
Candidates construed September 17, 2009).
Procedural rules Liberally construed in
favor of ascertaining the Effect of transfer of residence
will of the electorate
Any person, who transfers residence solely by reason of
Election period his occupation, profession or employment in private or
public service, education, etc., shall not be deemed to
As a general rule, the period of election starts at ninety have lost his original residence. [OEC, Art. XII, Sec. 117(2);
(90) days before and ends thirty (30) days after the Asistio v. Aguirre, G.R. No. 191124, April 27, 2010].
election date pursuant to Section 9, Article IX-C of the
Constitution and Section 3 of BP 881 otherwise known as Establishing a new domicile
the Omnibus Election Code (OEC). This rule, however, is
not without exception. Under these same provisions, the To establish a new domicile of choice, personal presence
COMELEC is not precluded from setting a period in the place must be coupled with conduct indicative of
different from that provided thereunder. (Aquino v. this intention. It requires not only such bodily presence
COMELEC, G.R. No. 211789-90, March 17, 2015). in that place but also a declared and probable intent to
make it one’s fixed and permanent place of abode.
(Jalover v. de la Pena, G.R. No. 209286, Sept. 23, 2014).

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 ELECTION LAW
Illiterate and disabled voters
REGISTRATION OF VOTERS
Any illiterate person may register with the assistance of
the Election Officer or any member of an accredited
Registration citizen’s arms. The application for registration of a
physically disabled person may be prepared by any
Registration is the act of accomplishing and filing a relative within the fourth civil degree of consanguinity or
sworn application for the registration by a qualified affinity or by the Election Officer or any member of an
voter before the election officer of the city or accredited citizen’s arm using the data supplied by the
municipality wherein he resides and including the same applicant. The fact of illiteracy or disability shall be so
in the book of registered voters upon approval by the indicated in the application. (RA 8189, Sec. 14)
Election registration Board. [Voter’s Registration Act of
1996, RA. 8189, Sec. 3 Par. (a)] It does not confer the right Kinds of registration system
to vote; it is but a condition precedent to the exercise of
the right. Registration is a regulation, not a qualification. 1. Continuing; and
(Yra v. Abano, G.R. No. 30187, November 5, 1928) 2. Computerized

Double-registrant System of continuing registration

Any person who, being a registered voter, registers anew GR: It is a system where the application of registration of
without filing an application for cancellation of his voters shall be conducted daily in the office hours of the
previous registration. [OEC, Art. XXII, Sec. 261, par. (y), election officer during regular office hours.
sub-par. (5)]
XPN: No registration shall be conducted during the
Double registrants are still qualified to vote provided period starting 120 days before a regular election and 90
that COMELEC has to make a determination on which days before a special election. (RA 8189, Sec. 8)
registration is valid, and which is void. COMELEC laid
down the rule in Minute Resolution No. 00-1513 that ---
while the first registration of any voter subsists, any Q: On Nov. 12, 2008, COMELEC issued Resolution
subsequent registration thereto is void ab initio 8514 setting Dec. 2, 2008 to Dec.15, 2009 as the
(Maruhom v. COMELEC, G.R. No. 179430, July 27, 2009). period of continuing voter registration.
Subsequently, COMELEC issued Resolution 8585 on
--- February 12, 2009 adjusting the deadline of voter
Q: Wil filed a petition for the cancellation of the COC registration for the May 10, 2010 national and local
of Allen for Mayor of South Upi alleging that Allen elections to Oct. 31, 2009 instead of Dec. 15, 2009 as
was not a registered voter in the Municipality of previously fixed by Resolution 8514. Petitioners
South Upi since Allen failed to sign his application for challenged the validity of COMELEC Resolution 8585
registration, thus, the unsigned application for and seek the declaration of its nullity. Petitioners
registration has no legal effect. In refutation, Allen further contend that COMELEC Resolution 8585 is an
asseverated that his failure to sign his application for encroachment on the legislative power of Congress
registration did not affect the validity of his as it amends the system of continuing voter
registration since he possesses the qualifications of a registration under Sec. 8 of RA 8189. Is COMELEC
voter set forth in the Omnibus Election Code as Resolution 8585 valid?
amended by Sec. 9 of RA 8189. Should Allen be
disqualified? A: NO. In the present case, the Court finds no ground to
hold that the mandate of continuing voter registration
A: YES. RA 8189 (The Voter’s Registration Act of 1996) cannot be reasonably held within the period provided by
specifically provides that an application for registration Sec. 8, RA 8189, which is daily during the office hours,
shall contain specimen signatures of the applicant as except during the period starting 120 days before the
well as his/her thumbprints, among others. The evidence May 10, 2010 regular elections. There is thus no occasion
shows that Allen failed to sign very important parts of for the COMELEC to exercise its power to fix other dates
the application, which refer to the oath which Allen or deadlines thereof.
should have taken to validate and swear to the veracity
of the contents appearing in the application for The present case differs significantly from the Akbayan-
registration. Plainly, from the foregoing, the Youth v. COMELEC, G.R. No. 147066, March 26, 2001. In
irregularities surrounding Allen’s application for the said case, the Court held that the COMELEC did not
registration eloquently proclaims that he did not comply abuse its discretion in denying the request of the therein
with the minimum requirements of RA 8189. This leads petitioners for an extension of the Dec. 27, 2000 deadline
to only one conclusion: that Allen, not having of voter registration for the May 14, 2001 elections. The
demonstrated that he duly accomplished an application therein petitioners filed their petition with the court
for registration, is not a registered voter. Hence, he must within the 120-day prohibitive period for the conduct of
be disqualified to run for Mayor. (Gunsi Sr. v. COMELEC, voter registration under Sec. 8, RA 8189, and sought the
G.R. No. 168792, Feb. 23, 2009) conduct of a two-day registration of February 17, and 18,
--- 2001, clearly also within the 120-day prohibited period.

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The clear import of the Court’s pronouncement in 1. Where the mailing system is fairly well-developed
Akbayan-Youth is that had therein petitioners filed their and secure to prevent the occasion of fraud;
petition – and sought an extension date that was – before 2. Where there exists a technically established
the 120-day prohibitive period, their prayer would have identification system that would preclude multiple
been granted pursuant to the mandate of RA 8189. In the or proxy voting; and;
present case, as reflected earlier, both the dates of filing 3. Where the system of reception and custody of
of the petition (October 30, 2009) and the extension mailed ballots in the embassies, consulates and
sought (until January 9, 2010) are prior to the 120 day other foreign service establishments concerned are
prohibitive period. The Court therefore, finds no legal adequate and well-secured. (RA 9189, Sec. 17.1)
impediment to the extension prayed for. (Kabataan
Partylist v. COMELEC, G.R. No. 189868, Dec. 15, 2009) Local absentee voting
---
It refers to a system of voting whereby government
Overseas Voting officials and employees, including members of the Armed
Forces of the Philippines (AFP), and the Philippine
The process by which qualified citizens of the Philippines National Police (PNP) as well as members of the media,
abroad exercise their right to vote. [R.A. 10590, Sec. 3(k), media practitioners including their technical and
amending R.A. 9189, Sec. 3] support staff (media voters) who are duly registered
voters, are allowed to vote for the national positions in
1. Qualifications places where they are not registered voters but where
a. All Filipino citizens abroad; they are temporarily assigned to perform election duties
b. Not otherwise disqualified by law; on election day. [COMELEC Resolution 9637, Sec. 1(a), 13
and February 2013]
c. At least 18 years of age on the day of elections.
Book of Voters
2. Coverage
May vote for President, Vice-President, Senators and Classified as permanent whereby each precinct shall
Party-List Representatives, as well as in all national have a permanent list of all registered voters residing
referenda and plebiscites. (R.A. 10590, Sec. 4, within the territorial jurisdiction of the precinct.
amending R.A. 9189)
Grounds for alteration
3. Disqualifications
a. Those who have lost their Filipino citizenship 1. Deactivation/Reactivation;
in accordance with Philippine laws; 2. Exclusion/ Inclusion;
b. Those who have expressly renounced their 3. Cancellation of Registration in case of death;
Philippine citizenship and who have pledged 4. Annulment of Book of Voters;
allegiance to a foreign country, except those 5. New Voters; and
who have reacquired or retained their 6. Transfer of residence
Philippine citizenship under R.A. 9225;
c. Those who have committed and are convicted Deactivation
in a final judgment by a Philippine court or
tribunal of an offense punishable by Removal from the registration records from the precinct
imprisonment of not less than one (1) year, books of voters and places the same, properly marked
such disability not having been removed by and dated in indelible ink, in the inactive file after
plenary pardon or amnesty: Provided, entering the cause of deactivation.
however, That any person disqualified to vote
under this subsection shall automatically Grounds for deactivation
acquire the right to vote upon the expiration
of five (5) years after service of sentence; and 1. Any person who has been sentenced by final
d. Any citizen of the Philippines abroad judgment to suffer imprisonment for not less than
previously declared insane or incompetent by one year, such disability not having been removed
competent authority in the Philippines or by plenary pandon or amnesty;
abroad, as verified by the Philippine
embassies, consulates or Foreign Service NOTE: The right to vote may be automatically
establishments concerned, unless such reacquired upon expiration of five (5) years after
competent authority subsequently certifies service of sentence as certified by the clerk of court.
that such person is no longer insane or
incompetent. (R.A. 10590, Sec. 5, amending 2. Any person who has been adjudged by a final
R.A. 9189) judgment by a competent court or tribunal pf having
caused/committed any crime involving disloyalty to
Voting by mail the duly constituted government such as rebellion,
sedition, violation of the anti-subversion and
Voting by mail may be allowed in countries that satisfy firearm laws, or any crime against national security,
the following conditions: unless restored to his full civil and political rights in
accordance with law;

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 ELECTION LAW

disapproved by the Sec. 142)

NOTE: The right to vote may be regained automatically Election
upon expiration of five (5) years after service of Registration Board 2. Representative of
sentence. political party
2. Those whose
3. Any person declared by competent authority to be names were 3. Election
insane or incompetent unless such disqualification stricken out from officer
has been subsequently removed by a declaration of the list of voters
a proper authority that such person is no longer (OEC, Sec. 139) 4. COMELEC
insane or incompetent;
3. COMELEC
4. Any person who did not vote in the two successive Period Any day except Anytime except 100
preceding regular elections as shown by their voting for 105 days before days before a regular
records. For this purpose, regular elections do not filing regular election or election or 65 days
include SK elections; 75 days before a before a special
special election election (COMELEC
5. Any person whose registration has been ordered (COMELEC Resolution No. 9021).
excluded by the Court; Resolution No.
8820).
6. Any person who has lost his Filipino citizenship.
(R.A. 8189, Sec. 27) Ground 1. Application for 1. Not qualified for
s registration has possessing
Reactivation been disapproved disqualification
by the board
Any voter whose registration has been deactivated may 2. Flying voters
file with the Election Officer a sworn application for 2. Name has been
reactivation of his registration in the form of an affidavit stricken out 3. Ghost voters
stating that the grounds for the deactivation no longer
exist at any time but not later than one hundred twenty
(120) days before a regular election and ninety (90) days Res judicata not applicable
before a special election. (R.A. 8189, Sec. 28)
The proceedings for the exclusion or inclusion of voters
in the list of voters are summary in character. Except for
INCLUSION AND EXCLUSION PROCEEDINGS the right to remain in the list of voters or for being
excluded therefrom for the particular election in relation
to which the proceedings had been held, a decision in an
Inclusion Proceedings exclusion or inclusion proceeding, even if final and
unappealable, does not acquire the nature of res judicata.
Any person whose application for registration has been In this sense, it does not operate as a bar to any further
disapproved by the Board or whose name has been action that a party may take concerning the subject
stricken out from the list may file with the court a passed upon in the proceeding. Thus, a decision in an
petition to include his name in the permanent list of exclusion proceeding would neither be conclusive on the
voters in his precint. voter’s political status, nor bar subsequent proceedings
on his right to be registered as a voter in any other
Exclusion Proceedings election. (Domino v. COMELEC, G.R. No. 134015, July 19,
1999)
Any registered voter, representative of a political party
or the Election Officer, may file with the court a sworn Voter using fake address not excluded
petition for the exclusion of a voter from the permanent
list of voters giving the name, address and the precint of A citizen cannot be disenfranchised for the flimsiest of
the challenged voter. reasons. Only on the most serious grounds, and upon
clear and convincing proof, may a citizen be deemed to
Jurisdiction have forfeited this precious heritage of freedom. (Asistio
v. Aguirre, G.R. No. 191124, April 27, 2010)
1. MTC – original and exclusive
2. RTC – appellate jurisdiction
3. SC – appellate jurisdiction over RTC on question of POLITICAL PARTIES
law

Who may file, period of filing and grounds Any organized group of citizens advocating an ideology
or platform, principles and policies for the general
Inclusion Exclusion conduct of government and which, as the most
Who 1. Any private 1. Any registered immediate means of securing their adoption, regularly
may file person whose voter in the city or nominates and supports certain of its leaders and
application was municipality (OEC, members as candidates in public office.

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NOTE: R.A 7941 does not require national and regional No votes cast in favor of political party, organization or
parties or organizations to represent the “marginalized coalition shall be valid except for those registered under
and underrepresented” sectors. (Atong Paglaon v. the party-list system. (1987 Constition, Article IX-C, Sec. 7)
COMELEC, G,R, No. 203766, April 2, 2013)
Grounds for refusal or cancellation of registration
JURISDICTION OF COMELEC OVER POLITICAL
PARTIES The COMELEC may, motu proprio or upon verified
complaint and after due notice and hearing, cancel the
Sec. 2(5), Art. IX-C of the Constitution grants the registration of a party, organization or coalition on any of
Commission the power to register political parties. It the following grounds:
also has the power to require candidates to specify in
their certificates of candidacy their political affiliation, 1. Religious sect or denomination, organization or
allow political parties to appoint watchers, limit their association, organized for religious purposes;
expenditures, and determine whether their registrations 2. Advocates violence or unlawful means to seek its
should be cancelled in appropriate proceedings. These goal;
powers necessarily include the jurisdiction to resolve 3. Foreign party or organization;
issues of political leadership in a political party, and to 4. Receiving support from any foreign government,
ascertain the identity of political party and its legitimate foreign political party, foundation, organization,
officers. (Palmares v. COMELEC, G.R. No. 86177, Aug. 31, whether directly or through any of its officers or
1989) members or indirectly through third parties for
partisan election purposes;
Kinds of Parties 5. Violates or fails to comply with laws, rules or
regulations relating to elections;
1. National party - constituency is spread over the 6. Declares untruthful statements in its petition;
geographical territory of at least a majority of the 7. Ceased to exist for at least one (1) year; or
regions. 8. Fails to participate in the last two (2) preceding
2. Regional party - constituency is spread over the elections or fails to obtain at least two per centum
geographical territory of at least a majority of the (2%) of the votes cast under the party-list system in
cities and provinces comprising the region. the two (2) preceding elections for the constituency
3. Sectoral party – organized group of citizens in which it has registered (RA 7941, Sec. 6).
belonging to any of the following sectors: labor,
peasant, fisherfolk, urban poor, indigenous cultural Illustrative case:
communities, elderly, handicapped, women, youth,
veterans, overseas workers and professionals Under Article IX-C, Section 2(5) of the 1987 Constitution,
whose principal advocacy pertains to the special parties, organizations and coalitions that seek to achieve
interests and concerns of their sector. their goals through violence or unlawful means shall be
denied registration. This disqualification is reiterated in
REGISTRATION OF POLITICAL PARTIES Section 61 of B.P. 881, which provides that no political
party which seeks to achieve its goal through violence
Registration shall be entitled to accreditation. Violence is the unjust
or unwarranted exercise of force, usually with the
Any organized group of persons may register as a party, accompaniment of vehemence, outrage or fury. It also
organization or coalition for purposes of the party-list denotes physical force unlawfully exercised; abuse of
system by filing with the COMELEC not later than ninety force; that force which is employed against common
(90) days before the election a petition verified by its right, against the laws, and against public liberty. On the
president or secretary stating its desire to participate in other hand, an unlawful act is one that is contrary to law
the party-list system as a national, regional, or sectoral and need not be a crime, considering that the latter must
party or organization or a coalition of such parties or still unite with evil intent for it to exist.
organizations, attaching thereto its constitutions, by-
laws, platform or program of government, list of officers, The Oakwood incident was one that was attended with
coalition agreement and other relevant information. (R.A. violence. As publicly announced by the leaders of
7941, Sec. 5) MAGDALO during the siege, their objectives were to
express their dissatisfaction with the administration of
Purpose of registration former President Arroyo, and to divulge the alleged
corruption in the military and the supposed sale of arms
A party, organization or coalition must be registered in to enemies of the state. Ultimately, they wanted the
order to: President, her cabinet members, and the top officials of
1. Acquire juridical personality; the AFP and the PNP to resign. To achieve these goals,
2. Entitle it to rights and privileges granted to MAGDALO opted to seize a hotel occupied by civilians,
political parties; and march in the premises in full battle gear with
3. Participate in the party-list system. (B.P. 881, ammunitions, and plant explosives in the building. These
Secs. 60 and 61) brash methods by which MAGDALO opted to ventilate
the grievances of its members and withdraw its support
Effect of non-registration from the government constituted clear acts of violence.

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 ELECTION LAW
of the election. (1987 Constitution, Art. VI, Sec.
The assertions of MAGDALO that no one was held 3)
hostage or that no shot was fired do not mask its use of
impelling force to take over and sustain the occupation Local Level
of Oakwood. Neither does its express renunciation of the
use of force, violence and other unlawful means in its A. For District Representatives
Petition for Registration and Program of Government 1. Natual-born citizen;
obscure the actual circumstances surrounding the 2. Registered voter in the district in which he shall
encounter. The deliberate brandishing of military power, be elected;
which included the show of force, use of full battle gear, 3. Resident of the same district for a period not
display of ammunitions, and use of explosive devices, less than one (1) year immediately preceding
engendered an alarming security risk to the public. At the day of the election;
the very least, the totality of these brazen acts fomented 4. Able to read and write; and
a threat of violence that preyed on the vulnerability of 5. At least 25 years old on the day of the election.
civilians. The COMELEC did not, therefore, commit (1987 Constitution, Art. VI, Sec. 6)
grave abuse of discretion when it treated the
Oakwood standoff as a manifestation of the B. For Governor, Vice Governor, Mayor, Vice-Mayor,
predilection of MAGDALO for resorting to violence or Punong Barangay and Sangguniang Members (1994,
threats thereof in order to achieve its objectives. 2005 BAR)
(Magdalo Para sa Pagbabago v. COMELEC, G.R. No. 1. Citizen of the Philippines;
190793, June 19, 2012) 2. Registered voter in the barangay, municipality,
city, or province or, in the case of a member of
the sangguniang panlalawigan, sangguniang
CANDIDACY panlungsod, or sangguniang bayan, the district
where he intends to be elected;
3. Resident therein for at least one (1) year
Candidate immediately preceding the day of the election;
4. Able to read and write Filipino or any other
It refers to any person aspiring for or seeking an elective local language or dialect.
public office, who has filed a CoC by himself or through (RA 7160 Local Government Code of the
an accredited political party, aggroupment or coalition of Philippines, Sec. 39)
parties. [OEC, Sec. 79(a)]

Any person may thus file a Certificate of Candidacy on NOTE: Congress may not add to qualifications for
any day within the prescribed period for filing a elective officials provided in the Constitution.
Certificate of Candidacy yet that person shall be
considered a candidate, for purposes of determining Purpose of the residency requirement
one’s possible violations of election laws, only during the
campaign period. (Penera v. COMELEC, G.R. No. 181613, The minimum requirement under our Constitution and
Nov. 25, 2009) election laws for the candidates' residency in the
political unit they seek to represent has never been
QUALIFICATIONS AND DISQUALIFICATION intended to be an empty formalistic condition. it carries
OF CANDIDATES with it a very specific purpose: to prevent “stranger[s] or
newcomer[s] unacquainted with the conditions and
Qualifications of Candidates needs of a community” from seeking elective offices in
that community. (Jalover v. de la Pena, G.R. No. 209286,
National Level Sept. 23, 2014)

A. For President and Vice-President Registered property as residency proof

1. Natural-born citizen;
2. At least 40 years old on the day of the election; The fact that a candidate has no registered property
3. Able to read and write; under his name in the locality wherein he seeks to be
4. Registered voter; and elected does not belie his actual residence therein
5. Resident of the Philippines for at least ten (10) because property ownership is not among the
years immediately preceding the day of the qualifications required of candidates for local election. It
election. (1987 Constitution, Art. VII, Secs. 2 and is enough that he should live in the locality, even in a
3) rented house or that of a friend or relative. (Jalover v.
dela Pena, ibid.)
B. For Senator
1. Natural-born citizen; ---
2. At least 35 years old on the day of the election; Q: Caballero was a natural-born Filipino who had his
3. Able to read and write; domicile of origin in Uyugan, Batanes. However, he
4. Registered voter; and later worked in Canada and became a Canadian
5. Resident of the Philippines for not less than citizen. Notwithstanding, he frequently visited
two (2) years immediately preceding the day Uyugan, Batanes during his vacation from work in

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Canada. Where is his residence for the purpose of
elections? FILING OF CERTIFICATES OF CANDIDACY

A: CANADA. In Coquilla v. COMELEC, SC ruled that

naturalization in a foreign country may result in an EFFECT OF FILING
abandonment of domicile in the Philippines. This holds
true in Caballero's case as permanent resident status in A CoC evidences candidate’s statutory eligibility to be
Canada is required for the acquisition of Canadian elected for an elective post. It is the document which
citizenship. Hence, Caballero had effectively abandoned formally accords upon a person the status of a candidate.
his domicile in the Philippines and transferred his (Tagolino v. HRET and Lucy Torres-Gomez, G.R. No.
domicile of choice in Canada. His frequent visits to 202202, March 19. 2013)
Uyugan, Batanes during his vacation from work in
Canada cannot be considered as waiver of such NOTE: A CoC may be amended before the elections, even
abandonment (Caballero v. COMELEC, G.R. No. 209835, after the date of its filing.
Sept. 22, 2015).
--- Provisions of the election law on certificates of candidacy
are mandatory in terms. However, after the elections,
Grounds for disqualification (1994, 1999, 2010 Bar) they are regarded as directory so as to give effect to the
will of the electorate. (Saya-Ang Sr. v. COMELEC, G.R. No.
1. Declared as incompetent or insane by competent 155087, November 28, 2003)
authority
2. Convicted by final judgment for subversion, Purpose
insurrection, rebellion, or any offense for which he
has been sentenced to a penalty of 18 months 1. Enable the voters to know, at least 60 days before
imprisonment the regular election, the candidates among whom
3. Convicted by final judgment for a crime involving they have to choose; and
moral turpitude 2. Avoid confusion and inconvenience in the tabulation
4. Election offenses under Sec. 261 of the OEC of the votes cast. (Miranda v. Abaya, G.R. No. 136351,
5. Committing acts of terrorism to enhance candidacy July 28, 1999)
6. Spending in his election campaign an amount in
excess of that allowed Filing CoC on the tenure of incumbency
7. Soliciting, receiving, making prohibited
contributions 1. Appointive official – considered ipso facto RESIGNED
8. Not possessing qualifications and possessing from his office upon the filing of his CoC. and such
disqualifications under the Local Government Code resignation is irrevocable (OEC, Sec. 66) (2002 Bar)
9. Sentenced by final judgment for an offense involving 2. Elective .official – No effect. The candidate shall
moral turpitude or for an offense punishable by one continue to hold office, whether he is running for
year or more of imprisonment within two years the same or a different position. (Fair Elections Act,
after serving sentence Sec. 14, expressly repealed BP 881, Sec. 67)
10. Removed from office as a result of an administrative
case ---
11. Convicted by final judgment for violating the oath of Q: Do the deemed-resigned provisions which are
allegiance to the Republic applicable to appointive officials and not to elective
12. Dual citizenship (more specifically, dual allegiance) officials violate the equal protection clause of the
13. Fugitives from justice in criminal or non-political constitution?
cases here or abroad
14. Permanent residents in a foreign country or those A: NO. Substantial distinctions clearly exist between
who have acquired the right to reside abroad and elective officials and appointive officials. The former
continue to avail of the same right occupy their office by virtue of the mandate of the
15. Insane or feeble-minded electorate. They are elected to an office for a definite
16. Nuisance candidate term and may be removed therefrom only upon
17. Violation of Sec. 73 OEC with regard to CoC stringent conditions. On the other hand, appointive
18. Violation of Sec. 78: material misrepresentation in officials hold their office by virtue of their designation
the COC thereto by an appointing authority. Some appointive
officials hold their office in a permanent capacity and are
Effect of an unsworn renunciation of foreign entitled to security of tenure while others serve at the
citizenship pleasure of the appointing authority. (Quinto v.
COMELEC, G.R. 189698, December 1, 2009)
Failure to renounce foreign citizenship in accordance ---
with the exact tenor of Sec. 5(2) of RA 9225 renders a
dual citizen ineligible to run for and thus hold any Effect of filing two certificates of candidacy
elective public office (Sobejana-Condon v. COMELEC, G.R.
No. 198742, Aug. 10, 2012). It disqualifies the person to run for both elective
positions (OEC, Sec. 73).

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 ELECTION LAW
However, before the expiration of the period for the filing disqualified candidate did not have a valid and
of CoC, the person who has filed more than one certificate seasonably filed CoC, he is and was not a candidate at all.
of candidacy may declare under oath the office for which If a person was not a candidate, he cannot be substituted
he desires to be eligible and cancel the CoC for the other under Sec. 77 of the Omnibus Election Code. If we were
office or office/s. A person who has filed a certificate of to allow the so-called "substitute" to file a "new" and
candidacy may, prior to election, withdraw the same. The "original" CoC beyond the period for the filing thereof, it
filing of a withdrawal certificate of candidacy shall not would be a crystalline case of unequal protection of the
affect whatever civil, criminal, or administrative liabilities law. Thus, there was no valid candidate for Adrianne to
as candidate may have incurred. (COMELEC Resolution substitute due to Raphael’s ineligibility. The existence of
8678, Sec. 1) a valid CoC is therefore a condition sine qua non for a
disqualified candidate to be validly substituted.
SUBSTITUTION OF CANDIDATES (Tagolino v. HRET and Lucy Torres-Gomez, G.R. No.
202202, March 19. 2013)
Substitution (1995 & 2009 Bar) ---
---
An official candidate of a duly registered political party Q: Han was a candidate for Vice Mayor in the First
or coalition who dies, withdraws, or is disqualified for Order City. His Certificate of Nomination and
any cause after the last day for the filing of CoCs may be Acceptance (CONA) was signed by his party’s chapter
substituted by a candidate belonging to, and nominated president Chewie. It appears, however, that his
by, the same political party or coalition. chapter president was not authorized by their
national party leader Luke to sign Han’s CONA. So,
No substitute shall be allowed for any independent COMELEC considered him an independent candidate
candidate. instead of being a candidate by his party.
Subsequently, Han’s party submitted proof that
The substitute for a candidate who died or is disqualified Chewie was authorized to sign Han’s CONA. Few days
by final judgment, may file a CoC up to mid-day of after filing his CoC, Hans died due to a heart attack.
Election Day; Provided that, the substitute and the Leia, Han’s wife, filed her CoC to substitute her
substituted have the same surnames. deceased husband. Han, despite his demise, received
twice as much votes as Kylo, Han’s rival for the
If the death or disqualification should occur between the position. Kylo then questioned the substitution of
day before the election and mid-day of Election Day, the Leia saying that an independent candidate cannot be
substitute candidate may file a CoC with any Board of substituted. COMELEC agreed with Kylo. Leia sought
Election Inspectors, Election Officers, Provincial Election to reverse COMELEC’s decision before the SC. Who
Supervisor, or Regional Election Director, as the case should the SC favor?
may be, in the political subdivision where such person is
a candidate, or in the case of a candidate for President, A: LEIA. Petitioner’s deceased husband’s name remained
Vice-President or Senator, with the Law Department; on the ballot notwithstanding his death even before the
Provided that, the substitute and the substituted campaign period for the local elections began on March
candidate have the same surnames. (COMELEC 29, 2013. Yet, he received almost twice the number of
Resolution 9984, August 18, 2015) votes as the second placer, private respondent, in a
decisive victory. Since the people could not have possibly
Requisites for valid substitution meant to waste their votes on a deceased candidate, we
conclude that petitioner was the undisputed choice of
1. The substitute must belong to the same party or the electorate as Vice Mayor on the apparent belief that
coalition; and she may validly substitute her husband. That belief was
2. The deceased, disqualified or withdrawn candidate not contradicted by any official or formal ruling by the
must have duly filed a valid CoC. COMELEC prior to the elections.

NOTE: The second requisite is a condition sine qua The late submission of the authority to sign the CONA to
non. (Tagolino v. HRET and Lucy Torres-Gomez, G.R. the COMELEC was a mere technicality that cannot be
No. 202202, March 19. 2013) used to defeat the will of the electorate in a fair and
honest election. Non-compliance with formal
--- requirements laid down in election laws when not used
Q: Raphael and Jimlan filed their CoCs for the as a means for fraudulent practice will be considered a
position of Mayor of Lucena City. Jimlan filed a harmless irregularity. Allowing the belated submission
petition to disqualify Raphael, alleging that Raphael of the authority to sign CONAs will not result in the
still filed his CoC despite knowing that he had situation proscribed by Section 77 of the Omnibus
exceeded the 3-term limit as Mayor of Lucena City. Election Code – that an independent candidate will be
COMELEC 1st Division disqualified Raphael. invalidly substituted. In the case at bar, neither the
Adrianne, the wife of Raphael, filed her own CoC in COMELEC nor private respondent contended the
substitution of her husband, Raphael. Can Adrianne deceased was not in fact a bona fide member of his party.
validly substitute her husband? The record is bereft of any allegation that the authority
was inexistent, forged or in any way defective. The only
A: NO. A disqualified candidate may only be substituted issue was that it was not submitted within the
if he had a valid CoC in the first place because, if the

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201 FACULTY OF CIVIL LAW
 POLITICAL LAW
prescribed deadline. (Engle v. COMELEC, G.R. No. 215995, 3. Clearly demonstrate that the candidate has no bona
January 19, 2016) fide intention to run for the office for which the CoC
--- has been filed and thus prevent a faithful
determination of the true will of the electorate.
Stray votes (OEC, Sec. 69)

In case of valid substitutions after the official ballots Power of COMELEC

have been printed, the votes cast for the substituted
candidates shall be considered as stray votes but shall GN: The COMELEC may, motu proprio or upon verified
not invalidate the whole ballot. For this purpose, the petition of an interested party, refuse to give due course
official ballots shall provide spaces where the voters may to or cancel a CoC upon showing of the above-stated
write the name of the substitute candidates if they are circumstances. (OEC, Sec. 69)
voting for the latter: Provided, however, That if the
substitute candidate of the same family name, this XPN: The COMELEC cannot motu proprio deny due
provision shall not apply. [R.A. 9006 (Fair Elections Act), course to or cancel an alleged nuisance candidate’s
Sec. 12] certificate of candidacy without providing the candidate
his opportunity to be heard. (Timbol v. COMELEC, G.R. No.
No substitution under Sec. 78 of OEC 206004, Feb. 24, 2015)

Section 77, OEC requires that there be a candidate in Effect of voting a nuisance candidate
order for substitution to take place. Thus, if a person’s
CoC had been denied due course to and/or cancelled The votes cast for a nuisance candidate are not stray but
under Section 78, OEC, he or she cannot be validly counted in favor of the bona fide candidate. (Dela Cruz v.
substituted in the electoral process. Stated differently, COMELEC, G.R. No. 192221, Nov. 13, 2012)
since there would be no candidate to speak of under a
denial of due course to and/or cancellation of a CoC case, PETITION TO DENY DUE COURSE OR
then there would be no candidate to be substituted. CANCEL A CERTIFICATE OF CANDIDACY
(Tagolino v. HRET and Lucy Torres-Gomez, G.R. No.
202202, March 19. 2013) Petition to deny due course or cancel a CoC (2009
Bar)
MINISTERIAL DUTY OF COMELEC
TO RECEIVE CERTIFICATES A verified petition seeking to deny due course or to
cancel a CoC may be filed by the person exclusively on
Duty of the COMELEC in receiving CoCs the ground that any material representation contained
therein as required under Sec. 74 of the OEC is false (B.P.
GR: When a candidate files his certificate of candidacy, 881, Sec. 78), provided that:
the COMELEC has a ministerial duty to receive and 1. The false representation pertains to material
acknowledge its receipt. (OEC, Sec. 7; Cerafica v. matter affecting substantive rights of a
COMELEC, G.R. No. 205136, Dec. 2, 2014) candidate; and
2. The false representation must consist of
XPNs: COMELEC may go beyond the face of the CoC in deliberate attempt to mislead, misinform, or
the following: hide a fact which would otherwise render a
1. Nuisance candidates; (OEC, Sec. 69) candidate ineligible. (Salcedo II v. COMELEC, G.R.
2. Petition to deny due course or to cancel a CoC; (OEC, No. 135886, Aug. 16, 1999)
Sec. 78)
3. Filing of a disqualification case on any of the NOTE: These two requirements must concur to warrant
grounds enumerated in Sec. 68, OEC. the cancellation of the CoC.

NUISANCE CANDIDATES Period to file a petition to deny due course to or

cancel a CoC
Any registered candidate for the same office may file a
petition to declare a duly registered candidate as a The petition may be filed at any time not later than 25
nuisance candidate, personally or through duly days from the time of the filing of the CoC and shall be
authorized representative with COMELEC, within 5 days decided, after due notice and hearing, not later than 15
from the last day of filing of CoC. [RA 6646 (The Electoral days before the election.
Reforms Law of 1987), Sec. 5]
NOTE: Jurisdiction over a petition to cancel a certificate
Grounds of candidacy lies with the COMELEC in division, not with
the COMELEC en banc. (Gravida v. Sales, G.R. No. 122872,
The COMELEC may motu proprio or upon verified September 10, 1997)
petition refuse to give due course to or cancel a
certificate of candidacy if shown that it was filed to: Material misrepresentation
1. Put the election process in mockery or disrepute;
2. Cause confusion among the voters by the similarity Material misrepresentation in a CoC refers to the
of the names of the registered candidates; or qualification for elective office, which includes false

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 ELECTION LAW
statement as to age, residency, citizenship, being a because the votes cast in favor of an eligible candidate do
registered voter and any other legal qualifications not constitute the sole and total expression of the
necessary to run for an elective office. sovereign voice (Maquiling v. COMELEC, ibid.).
---
NOTE: A misrepresentation which does not affect one’s ---
qualification to run or hold public office will not suffice Q: What if the Mayor was disqualified because of an
for the cancellation of a CoC. election offense under Sec. 68 of the Omnibus
Election Code? Who will succeed?
---
Q: Alejandro Salvador II and Barbara Salvador both A: Vice Mayor. The effect of the Mayor’s disqualification
ran for the position of Mayor in the Municipality of is a permanent vacancy in the position. Under Sec. 44 of
Alicia, Isabela. Carlo filed a disqualification the Local Government Code, in case of permanent
complaint against Barbara since she was using the vacancy in the position of Mayor, the Vice Mayor will
surname Salvador when in fact her marriage to succeed.
Michael Salvador was void. Barb,ara claims that she ---
did not know that Michael has a subsisting marriage
when they got married. Did Barbara commit any Application of the rule on succession
material misrepresentation by using Salvador as her
surname when in fact their marriage was void? MAQUILING CASE E.R. EJERCITO CASE
The rule on succession The rule on succession
A: NO. A false representation under section 78 must under the Local provided for in Sec. 44 of
consist of a "deliberate attempt to mislead, misinform, or Government Code will RA 7160 or the Local
hide a fact which would otherwise render a candidate not apply because the Government Code applies
ineligible." It must be made with an intention to deceive issue here is his in this case because what
the electorate as to one's qualifications for public office. citizenship which is a occurred here after his
The use of a surname, when not intended to mislead or continuing requirement. disqualification is a
deceive the public as to one's identity, is not within the Being a continuing permanent vacancy in the
scope of the provision. (Salcedo II v. COMELEC, supra.) requirement, he must position. What is involved
--- possess it before and in this case is the
after elections until the commission of an election
EFFECT OF DISQUALIFICATION end of his term. His use offense (overspending)
of US Passport after provided for in Sec. 68 of
1. Final judgment before election – The candidate shall reacquiring his OEC which, in effect,
not be voted for, and the votes cast for him shall not be citizenship negated his disqualifies the candidate
counted. (1991 Bar) Affidavit of Renunciation. from holding office.
As a dual citizen, he is
2. No final judgment until after election and receives the disqualified from the Here, the candidate
highest number of votes in the election – The Court or very beginning to run for possesses all the
Commission shall continue with the trial and hearing of office. With him being qualifications and none of
the action, inquiry or protest and upon motion of the
complainant or any intervenor, may, during the barred to run for office, the disqualifications to run
pendency thereof, order the suspension of the he is not considered as a for office. Therefore, he is a
proclamation of such candidate whenever the evidence candidate at all. valid candidate. (Emilio
of his guilt is strong. (Maquiling v. COMELEC, Ramon "E.R." P. Ejercito v.
G.R No. 195649, April 16, Comelec, G.R. No. 212398.
--- 2013) November 25, 2014)
Q: Should the Vice Mayor succeed the Mayor’s CoC be
denied or cancelled subsequent to his proclamation NOTE: Correlate the foregoing with the discussion under
because it was later found that he is ineligible to run Remedies and Jurisdiction in Election Law.
for the position?
WITHDRAWAL OF CANDIDATES
A: NO. The candidate for the same position who
garnered the next highest vote shall be proclaimed as the The withdrawal of the certificate of candidacy shall effect
winner. Technically, such candidate is the first-placer for the disqualification of the candidate to be elected for the
the reason that a void CoC cannot produce any legal position. The withdrawal of the withdrawal, for the
effect and therefore, an ineligible candidate is not purpose of reviving the certificate of candidacy, must be
considered a candidate at all. (Maquiling v. COMELEC, G.R made within a period provided by law for the filing of
No. 195649, April 16, 2013) certificates of candidacy. (Monsale v. Nico, G.R, No. L-
--- 2539, May 28, 1949. The filing or withdrawal of a
--- certificate of candidacy shall not affect whatever civil,
Q: What will happen to the votes of the electorate for criminal, or administrative liabilities which a candidate
the ineligible candidate? may have incurred. (B.P. 881, Sec. 73)

A: It will not be considered at all. However, even if it is

disregarded, the will of the electorate is still respected

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XPN: Political parties may hold political conventions to
CAMPAIGN nominate their official candidates within 30 days before
the start of the period for filing a certificate of candidacy.
[RA 9369 (Poll Automation Law), Sec. 15]
Election campaign
NOTE: The use of lawful election propaganda under the
An act designed to promote the election or defeat of a Fair Elections Act is subject to the supervision and
particular candidate or candidates to a public office regulation by the COMELEC in order to prevent
which shall include: premature campaigning and to equalize, as much as
1. Forming organizations, associations, clubs, practicable, the situation of all candidates by preventing
committees or other groups of persons for the popular and rich candidates from gaining undue
purpose of soliciting votes and/or undertaking any advantage in exposure and publicity on account of their
campaign for or against a candidate; resources and popularity. (Chavez v. COMELEC, G.R. No.
2. Holding political caucuses, conferences, meetings, 162777, Aug. 31, 2004)
rallies, parades, or other similar assemblies, for the
purpose of soliciting votes and/or undertaking any ---
campaign or propaganda for or against a candidate; Q: Petitioner Iah and respondent Yen ran for mayor
3. Making speeches, announcements or commentaries, of Sta. Monica, Surigao Del Norte during the May 14,
or holding interviews for or against the election of 2007 elections. Yen’s political party held a
any candidate for public office; motorcade preceding the filing of her CoC
4. Publishing or distributing campaign literature or announcing her candidacy for mayor. Yen filed her
materials designed to support or oppose the CoC on March 29, 2007. Because of this, Iah filed a
election of any candidate; or petition to disqualify Yen for engaging in premature
5. Directly or indirectly soliciting votes, pledges or campaigning in violation of Sec. 80 and 68 of the OEC.
support for or against a candidate. (OEC, Sec. 79) Did Yen violate the prohibition against premature
campaigning?
NOTE: The foregoing enumerated acts if performed for
the purpose of enhancing the chances of aspirants for A: NO. The campaign period for local officials began on
nomination for candidacy to a public office by a political 30 March 2007 and ended on 12 May 2007. Yen filed her
party or coalition of parties shall not be considered as CoC on 29 March 2007. Yen was thus a candidate on 29
election campaign or partisan election activity. March 2007 only for purposes of printing the ballots
under Sec. 11 of RA 8436. Acts committed by Yen prior
Period to campaign to 30 March 2007, the date when she became a
"candidate", even if constituting election campaigning or
1. Presidential and Vice presidential election – 90 days; partisan political activities, are not punishable under Sec.
2. Election of members of the Congress and local 80 of the OEC. Such acts are within the realm of a
election – 45 days; citizen’s protected freedom of expression. Acts
3. Barangay Election – 15 days committed by Yen within the campaign period are not
4. Special election under Art. VIII, Sec. 5(2) of the covered by Sec. 80 as Sec. 80 punishes only acts outside
Constitution – 45 days the campaign period.

NOTE: The campaign periods shall not include the day A candidate is liable for an election offense only for acts
before and the day of the election (OEC, Sec. 3). done during the campaign period, not before. The law is
clear as daylight — any election offense that may be
Persons prohibited to campaign committed by a candidate under any election law cannot
be committed before the start of the campaign period.
1. Members of the Board of Election Inspectors (OEC, (Penera v. COMELEC, G.R. No. 181613, November 25,
Sec. 173); 2009)
2. Civil service officers or employees [1987 ---
Constitution, Art. IX-B, Sec. 2(4)]; ---
3. Members of the military [1987 Constitution, Art. XVI, Q: Is a candidate liable for an election offense for acts
Sec. 5(3)]; done before the campaign period?
4. Foreigner, whether juridical or natural persons
A: No. A candidate is liable for an election offense only
for acts done during the campaign period, not before.
Any unlawful act or omission applicable to a candidate
PREMATURE CAMPAIGNING shall take effect only upon the start of the campaign
period. The plain meaning of this provision is that the
Premature campaign (2012 Bar) effective date when partisan political acts become
unlawful as to a candidate is when the campaign period
GN: Any election campaign or partisan political activity starts. Before the start of the campaign period, the same
for or against any candidate outside of the campaign partisan political acts are lawful. (Penera v. COMELEC,
period is prohibited and shall be considered as an G.R. No. 181613, November 25, 2009)
election offense. (OEC, Sec. 80) ---

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 ELECTION LAW

PROHIBITED CONTRIBUTIONS drawn, with or without sound systems or loud

speakers and with or without lights; and
No contribution for purposes of partisan political activity 7. All other forms of election propaganda not
shall be made directly or indirectly by any of the prohibited by the OEC or this Act (RA 9006, The Fair
following: Elections Act, Sec. 3,).

1. Public or private financial institutions, unless such Rules on election propaganda

institutions are legally in the business of lending
money, and the loan was made in accordance with 1. All registered parties and bona fide candidates shall
laws and in the ordinary course of business; have a right to reply to charges published against
2. Natural and juridical persons operating public them;
utilities or in possession of or exploiting natural 2. No movie, cinematographic, documentary
resources of the nation; portraying the life or biography of a candidate shall
3. Natural and juridical persons who hold contracts or be publicly exhibited in theatre, TV station, or any
sub-contracts to supply the government with goods public forum during the campaign period;
or services or to perform construction or other 3. No movie, cinematograph, documentary portrayed
works; by an actor or media personality who is himself a
4. Grantees of franchises, incentives, exemptions, candidate shall be publicly exhibited in a theatre, TV
allocations, or similar privileges or concessions by station or any public form during the campaign
the government; period;
5. Natural and juridical persons who, within one year 4. All mass media entities shall furnish the COMELEC
prior to the date of the election, have been granted with the copies of all contracts for advertising,
by the government loans or other accommodations promoting, or opposing any political party or the
in excess of P100,000; candidacy of any person for public office within 5
6. Educational institutions which have received grants days after its signing;
of public funds not less than P100,000; 5. Any media personality who is a candidate or is
7. Officials or employees in the Civil Service or campaign volunteer for or employed or retained in a
members of the Armed Forces of the Philippines; capacity by any candidate or political party shall be
and deemed resigned, if so requires by their employer,
8. Foreigners and foreign corporations (OEC, Secs. 95 shall take a LOA from his work as such during
and 96). campaign period.

Prohibited fund-raising activities Right to Reply

1. Holding any of the following activities: All registered parties and candidates shall have the right
a. Dances; to reply to charges published or aired against them. The
b. Lotteries; reply shalt be given publicity by the newspaper,
c. Cockfights; television, and/or radio station which first printed or
d. Games; aired the charges with the same prominence or in the
e. Boxing bouts; same page or section, or in the same time slot as the first
f. Bingo; statement. (COMELEC Resolution 10049, Sec. 16, February
g. Beauty contests; and 1, 2016)
h. Entertainments, cinematographic, theatrical, or
other performances; and Procedure to invoke the right to reply
2. Solicit and/or accept from any candidate for public
office or his representative any gift, food, Registered parties and candidates may invoke the right
transportation, contribution or donation in cash or to reply by submitting within a non-extendible period of
in kind. (OEC, Sec. 97) thirty-six (36) hours from first broadcast or publication,
a formal verified claim against the mass media entity to
LAWFUL AND PROHIBITED PROPAGANDA the COMELEC, through the appropriate Regiional
Election Director (RED), or in the case of the NCR, the
Lawful election propaganda Education and Information Department. (EID) (COMELEC
Resolution 10049, Sec. 16, February 1, 2016).
1. Written printed materials (does not exceed 8 ½ in.
width by 14 in. length); Period of resolution
2. Handwritten/printed letters;
3. Posters (not exceeding 2 x 3 ft. or 3 x 8 ft.); The COMELEC, through the appropriate RED or the EID,
4. Print ads – ¼ page in broadsheets and ½ page in shall review the formal verified claim within thirty-six
tabloids thrice a week per newspaper, magazine or (36) hours from receipt thereof, and if circumstances
other publication during the campaign period warrant, endorse the same to the mass media entity
(COMELEC Res. 9615, Sec. 6, January 15, 2013); involved, which shall, within twenty-four (24) hours,
5. Broadcast media (i.e. TV and radio); submit its report to the RED or EID, as the case maybe,
6. Mobile units, vehicles motorcades of all types, explaining the action it has taken to address the claim.
whether engine or manpower driven or animal The mass media entity must likewise furnish a copy of
the said report to the claimant invoking the right to

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 POLITICAL LAW
reply. (COMELEC Resolution 10049, Sec. 16, February 1, f. To post, display or exhibit any election campaign or
2016) propaganda material outside of authorized common
poster areas, in public places, or in private
Remedy when right to reply not addressed properties without the consent of the owner
thereof.
Should the claimant insist that his/her right to reply was
not addressed, he/she may file the appropriate petition Public places include any of the following:
and/ or complaint before the COMELEC Main Office. 1. Publicly-owned electronic announcement boards,
(COMELEC Resolution 10049, Sec. 16, February 1, 2016) such as light-emitting diode (LED) display boards
located along highways and streets, liquid crystal
Prohibited forms of election propaganda display (LCD) posted on walls of public buildings,
and other similar devices which are owned by
It shall be unlawful: local government units, government~ owned or
a. To print, publish, post or distribute any newspaper, controlled corporations, or any agency or
newsletter, newsweekly, gazette or magazine instrumentality of the Government;
advertising, pamphlet, leaflet, card, decal, bumper 2. Motor vehicles used as patrol cars, ambulances,
sticker, poster, comic book, circular, handbill, and for other similar purposes that are owned by
streamer, sample list of candidates or any published local government units, government-owned or
or printed political matter, and to air or broadcast controlled corporations, and other agencies and
any election propaganda or political advertisement instrumentalities of the Government, particularly
by television or radio or on the Internet for or those bearing government license plates.
against a candidate or group of candidates to any 3. Public transport vehicles owned and controlled
public office, unless they bear and be identified by by the government such as the Metro Rail Transit
the reasonably legible, or audible words "political (MRT), Light Rail Transit (LRT), and Philippine
advertisement paid for," followed by the true and National Railway trains and the like.
correct name and address of the candidate or party 4. Waiting sheds, sidewalks, street and lamp posts,
for whose benefit the election propaganda was electric posts and wires, traffic signages and other
printed or aired. It shall likewise be unlawful to signboards erected on public property, pedestrian
publish, print or distribute said campaign materials overpasses and underpasses, flyovers and
unless they bear, and are identified by, the underpasses, bridges, main thoroughfares, center
reasonably legible, or audible words "political islands of roads and highways;
advertisements by," followed by the true and correct 5. Schools, public shrines, barangay halls,
name and address of the payor; government offices, health centers, public
b. To print, publish, broadcast, display or exhibit any structures and buildings or any edifice thereof;
such election propaganda donated or given free of 6. Within the premises of public transport terminals,
charge by any person or mass media entity to a owned and controlled by the government, such as
candidate or party without the written acceptance bus terminals, airports, seaports, docks, piers,
of the said candidate or party, and unless they bear train stations and the like (Sec. 7, COMELEC
and be identified by the words "printed free of Resolution 10049, February 1, 2016).
charge," or "airtime for this broadcast was provided
free of charge by", respectively, followed by the true
and correct name and address of the said mass ALLOWABLE COMELEC AIR TIME FOR CANDIDATES
media entity; (Fair Elections Act)
c. To show, display or exhibit publicly in a theater, NATIONAL POSITIONS LOCAL POSITIONS
through a television station, or any public forum any 120 minutes for TV 60 minutes for TV
movie, cinematography or documentary, including 180 minutes for radio 90 minutes for radio
concert or any type of performance portraying the
life or biography of a candidate, or in which a Aggregate-based airtime limit
character is portrayed by an actor or media
personality who is himself or herself a candidate; COMELEC went beyond the authority granted it by RA
d. For any newspaper or publication, radio, television 9006 in adopting “aggregate basis” in the determination
or cable television station, or other mass media of allowable time. The law, on its face, does not justify
entity, or any person making use of the mass media the conclusion that the maximum allowable airtime
to sell or give free of charge print or advertising should be based on the totality of possible broadcast in
space or airtime for campaign or election all television or radio stations. The legislative intent
propaganda purposes to any candidate or party in relative to airtime allowed is “on a per station basis”.
excess of the size, duration or frequency authorized Congress intended to provide a more expansive and
by law or these Rules; liberal means by which the candidates, political parties,
e. For any radio, television, cable television station, citizens and other stake holders in the periodic electoral
announcer or broadcaster to allow the scheduling of exercise may be given a chance to fully explain and
any program, or permit any sponsor to manifestly expound on their candidacies and platforms of
favor or oppose any candidate or party by unduly or governance, and for the electorate to be given a chance
repeatedly referring to, or unnecessarily mentioning to know better the personalities behind the candidates.
his name, or including therein said candidate or
party; and

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 ELECTION LAW
The assailed rule on "aggregate-based" airtime limits is Section shall constitute an election offense. (COMELEC
unreasonable and arbitrary as it unduly restricts and Resolution 10049, Sec. 28, February 1, 2016)
constrains the ability of candidates and political parties ---
to reach out and communicate with the people. (GMA
Network, Inc., v. COMELEC, G.R. No. 205357, Sept. 2, 2014) Exit Poll

COMELEC supervision over media An exit poll is a species of electoral survey conducted by
qualified individuals or groups of individuals for the
During the election period the COMELEC may supervise purpose of determining the probable result of an election
or regulate the media of communication or information by confidentially asking randomly selected voters whom
to ensure equal opportunity, time, and space among they have voted for, immediately after they have
candidates with the objective of holding free, orderly, officially cast their ballots. The revelation of whom an
honest, peaceful, and credible elections. To allow elector has voted for is not compulsory, but voluntary.
candidates who are supported by more than one political Indeed, narrowly tailored countermeasures may be
party to purchase more air time and advertising space prescribed by the COMELEC, so as to minimize or
than candidates supported by one political party only suppress incidental problems in the conduct of exit polls,
will deprive the latter of equal time and space in the without transgressing the fundamental rights of our
media. (1987 Constitution, Art. IX-C, Sec. 4) people. (ABS-CBN Broadcasting Corporation v. COMELEC,
G.R. No. 133486, Jan. 28, 2000)
Election Survey
Requirements in the conduct of exit polls
Prohibiting publication of survey results 15 days
immediately preceding a national election and 7 days a. Pollster shall not conduct their surveys within fifty
before a local election (RA 9006, Sec. 5.4) violates the (50) meters from the polling place, whether said
constitutional rights of speech, expression and the press survey is taken in a home, dwelling place and other
because: places;
1. It imposes a prior restraint on the freedom of b. Pollsters shall wear distinctive clothing and
expression; prominently wear their identification cards issued
2. It is a direct and total suppression of a category of by the organization they represent;
expression and even though such suppression is c. Pollsters shall inform the voters that they may
only for a limited period; and refuse to answer; and
3. The governmental interest sought to be promoted d. The results of the exit polls may be announced after
can be achieved by means other than the the closing of the polls on Election Day, and must
suppression of freedom of expression. (SWS v. identify the total number of respondents, and the
COMELEC, G.R. No. 147571, May 5, 2001) places where they were taken. Said announcement
shall state that the same is unofficial and does not
--- represent a trend. (RA 9006, Sec. 5.5)
Q: May the media be compelled to publish the results
of the election survey? ---
Q: Does the conduct of exit polls transgress the
A: NO, but should they decide to publish the said survey sanctity and secrecy of the ballot?
for public consumption, they must likewise publish the
following information: A: NO. In exit polls, the contents of the official ballot are
a. The name of the person, candidate, party, or not actually exposed. Furthermore, the revelation of
organization that commissioned, paid for, or whom an elector has voted for is not compulsory, but
subscribed to the survey; voluntary.
b. The name of the person, polling firm or survey
organization which conducted the survey; Voters may also choose not to reveal their identities.
c. The period during which the survey was conducted, Indeed, narrowly tailored countermeasures may be
the methodology used, including the number of prescribed by the COMELEC, so as to minimize or
individual respondents and the areas from which suppress incidental problems in the conduct of exit polls,
they were selected, and the specific questions asked; without transgressing the fundamental rights of our
d. The margin of error of the survey; people. (ABS-CBN Broadcasting Corporation v. COMELEC,
e. For each question where the margin of error is G.R. No. 133486, January 28, 2000)
greater than that reported under paragraph d the ---

f. margin of error for that question; and LIMITATION ON EXPENSES

g. A mailing address and telephone number at which
the sponsor can be contacted to obtain a written Lawful expenditures
report regarding the survey in accordance with the
next succeeding paragraph. 1. Traveling expenses;
The survey, together with raw data gathered to support 2. Compensation of persons actually employed in the
its conclusions shall be available for inspection, copying campaign;
and verification by the COMELEC. Any violation of this 3. Telegraph and telephone tolls, postage, freight and
express delivery charges;

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 POLITICAL LAW
4. Stationery, printing and distribution of printed No person elected to any public office shall enter upon
matters relative to candidacy; the duties of his office until he he and the political party
5. Employment of watchers at the polls; that nominated him has filed the statement of
6. Rent, maintenance and furnishing of campaign contributions and expenditures required by law. Except
headquarters, office or place of meetings; candidates for elective barangay office, failure to file the
7. Political meetings or rallies; statements or reports shall constitute an administrative
8. Advertisements’ offense. (R.A. 7166, Sec. 14)
9. Employment of counsel;
10. Copying and classifying list of voters, investigating Administrative fines that may be imposed in cases of
and challenging the right to vote of persons failure to file said statement
registered in the lists; and
11. Printing sample ballots. (OEC, Sec. 102) 1. 1st offense – P1,000.00 to P30,000.00, in the discretion
of the Commission.
NOTE: The cost of numbers 9, 10, 11 shall not be taken 2. 2nd offense – P2,000.00 to P30,000.00, in discretion of
into account in determining the amount of expenses the Commission, and the offender shall be subject to
which a candidate or political party may have incurred. perpetual disqualification to hold public office. (RA
7166, Sec. 14)
Limitations on expenses

The aggregate amount that candidate or party may

spend for an election campaign shall be as follows:
a. Candidates for President and Vice-President - Ten BOARD OF ELECTION INSPECTORS (BEI)
pesos (P10.00) for every registered voter; AND BOARD OF CANVASSERS (BOC)
b. For other candidates - Three pesos (P3.00) for every
voter currently registered in the constituency where
the candidate filed his certificate of candidacy; COMPOSITION & POWERS
c. For candidates under the above paragraph (b)
without any political party and without support from Composition of BEI
any political party - Five pesos (P5.00) for every
voter currently registered in the constituency where 1. Chairman ;
the candidate filed his certificate of candidacy; and 2. Poll Clerk; and
d. For Political Parties and party-list groups - Five
pesos (P5.00) for every voter currently registered in NOTE: The Chairman and the Poll Clerk must be
the constituency or constituencies where it has public school teachers and priority to be given to
official candidates (COMELEC Resolution 10049, Sec. civil service eligibles.
5, February 1, 2016).
Where an Automated Election System (AES) is
Election expenses inclusive of contributor, supporter adopted, at least one member of the Board of
or donor Election Inspectors shall be an information
technology-capable person, who is trained or
Sections 100, 101, and 103 of OEC regulate not just the certified by the DOST to use the AES (R.A. 9369, Sec.
election expenses of the candidate but also of his 3).
contributor/supporter/donor. (Ejercito v. COMELEC, G.R.
No. 212398, Nov. 25, 2014). 3. Two members, each representing the two
accredited political parties (OEC, Art. XIV Sec. 164).
STATEMENT OF CONTRIBUTIONS
AND EXPENSES Qualifications of BEI

Every candidate and treasurer of the political party shall, 1. Good moral character and irreproachable
within 30 days after the day of the election, file in reputation;
triplicate with the offices of the Commission where he 2. Registered voter of the city or municipality;
filed his Certificate of Candidacy, except for national 3. Never been convicted of any election offense or any
positions which should be filed with the Campaign other crime punishable by more than 6 months of
Finance Unit of the COMELEC, a full, true and itemized imprisonment, or if he has pending against him an
statement of all contributions and expenditures in information for any election offense;
connection with the elections. (RA 7166, Sec. 14).
4. Speak, read and write English or the local dialect;
and
Candidates who withdrew after the filing of their COCs
are required to comply with the filing of statement of all
5. At least 1 member of the BEI shall be an
information technology-capable person who is
contributions and expenses. (Pilar v, COMELEC, G.R, No.
trained and certified by the DOST to use the AES
115245, July 11, 1995)
(where AES shall be adopted). (OEC, Sec. 166)
Effects of failure to file statement of contributions
Disqualifications of BEI
and expenses

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1. Related within fourth degree of consanguinity or representative from each of the ruling party
affinity to any member of the BEI; and the dominant opposition political party
2. Related within fourth degree of consanguinity or entitled to be represented
affinity to any candidate to be voted in the polling 5. BOC for newly created political subdivisions – The
place or his spouse; and Commission shall constitute a board of canvassers
3. Not engaged in any partisan political activity or take and appoint the members thereof for the first
part in the election except to discharge his duties as election in a newly created province, city or
such and to vote (OEC, Secs. 167 and 173) municipality in case the officials who shall act as
members thereof have not yet assumed their duties
Period of Constitution of the BEI and functions. (OEC, Sec. 221)

At least thirty days before the date when the voters list is Powers of the BOC
to be prepared in accordance with the Omnibus Election
Code, in the case of a regular election or fifteen days The board of canvassers is a ministerial body. It is
before a special election. (OEC, Secs. 167 and 173) enjoined by law to canvass all votes on election returns
submitted to it in due form. Its powers are “limited
Powers of the BEI generally to the mechanical or mathematical function of
ascertaining and declaring the apparent result of the
1. Conduct the voting and counting of votes in their election by adding or compiling the votes cast for each
respective polling places; candidate as shown on the face of the returns before
2. Act as deputies of the Commission in the them, and then declaring or certifying the result so
supervision and control of the election in the polling ascertained. (Abes v, COMELEC, G.R. No. L-28348,
places wherein they are assigned, to assure the December 15, 1967)
holding of the same in a free, orderly and honest
manner; and Canvass by the BOC
3. Perform such other functions prescribed by this
Code or by the rules and regulations promulgated Canvassing is the process by which the results in the
by the Commission. (OEC, Art. XIV, Sec. 168) election returns are tallied and totaled.

Composition of BOC Certificate of canvass is the official tabulations of votes

accomplished by district, municipal, city and provincial
1. Provincial BOC – canvassers based on the election returns, which are the
a. Chairman: the provincial election supervisor or results of the ballot count at the precinct level.
a senior lawyer in the regional office of the
Commission Manner of delivery and transmittal of election
b. Vice-Chairman: the provincial fiscal returns
c. Members: the provincial superintendent of
schools, and one representative from each of CITY AND MUNICIPAL PROVINCIAL AND
the ruling party and the dominant opposition BOC DISTRICT BOC IN
political party in the constituency concerned METROPOLITAN
entitled to be represented. MANILA
2. City BOC –
a. Chairman: the city election registrar or a The copy of the election returns must be:
lawyer of the Commission a. Duly placed inside a Personally delivered by
b. Members: the city fiscal, the city sealed envelope signed the members of the BEI
superintendent of schools, and one b. Affixed with the to the Election Registrar
representative from each of the ruling party imprint of the thumb of for transmittal to the
and the dominant opposition political party the right hand of all the proper BOC under
entitled to be represented. members of the BEI proper receipt to be
3. District BOC of Metropolitan Manila – c. Personally delivered by signed by all the
a. Chairman: a lawyer of the Commission the members of the BEI members thereof [OEC,
b. Members: a ranking fiscal in the district, the to the city or municipal Sec. 299(b)].
most senior district school supervisor in the BOC under proper
district to be appointed upon consultation with receipt to be signed by
the Ministry of Justice and the Ministry of all the members thereof
Education, Culture and Sports, respectively, and [OEC, Sec. 299(a)].
one representative from each of the ruling
party and the dominant opposition political The Election Registrar concerned shall place all the
party in the constituency concerned returns intended for the BOC inside a ballot box
4. Municipal BOC – provided with three padlocks whose keys shall be kept
a. Chairman: the election registrar or a as follows:
representative of the Commission a. one by the election registrar;
b. Members: the municipal treasurer, the district b. another by the representative of the ruling
supervisor or in his absence any public school party; and
principal in the municipality, and one

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c. the third by the representative of the 1. Obtain such missing election returns from the BEI
dominant political opposition party (OEC, Sec. concerned;
229). 2. If said returns have been lost or destroyed, the BOC,
upon prior authority of the Commission, may use
Safekeeping of transmitted election returns any of the authentic copies or a certified copy of said
election returns issued by the Commission; and
The BOC shall keep the ballot boxes containing the 3. Direct its representative to investigate the case and
election returns in a safe and secure room before and immediately report the matter to the Commission.
after the canvass.
NOTE: The BOC, notwithstanding the fact that not all the
Poll watchers election returns have been received by it, may terminate
the canvass and proclaim the candidates elected on the
Every registered political party or coalition of political basis of the available election returns if the missing
parties, and every candidate shall each be entitled to one election returns will not affect the results of the election.
watcher in every polling place and canvassing center; (OEC, Sec. 233)
Provided, candidates for the Sangguniang Panlalawigan,
Sangguniang Panlunsod, or Sangguniang Bayan When integrity of ballots is violated
belonging to the same slate or ticket shall collectively be
entitled to only one watcher. The Commission shall not recount the ballots but shall
forthwith seal the ballot box and order its safekeeping
There shall also be recognized six principal watchers, (OEC, Sec. 237).
representing the six accredited major political parties 1. Material defects– If it should clearly appear that
excluding the dominant majority and minority parties, some requisites in form or data had been omitted in
who shall be designated by the Commission upon the election returns, the BOC shall call for all the
nomination of the said parties [R.A. 9369, (Election members of the BEI concerned by the most
Automation Law), Sec. 34]. expeditious means, for the same board to effect the
correction (OEC, Sec. 234).
Process of canvassing by the BOC 2. Omission in the election returns of the name of any
candidate and/or his corresponding votes – The BOC
1. The BOC shall meet not later than six o'clock in the shall require the BEI concerned to complete the
afternoon of Election Day at the place designated by necessary data in the election returns and affix
the Commission to receive the election returns and therein their initials (OEC, Sec. 234).
to immediately canvass those that may have already 3. Falsified or appear to be tampered with – If the
been received; election returns submitted to the BOC appear to be
2. It shall meet continuously from day to day until the tampered with, altered or falsified after they have
canvass is completed, and may adjourn but only for left the hands of the BEI, or otherwise not authentic,
the purpose of awaiting the other election returns or were prepared by the BEI under duress, force,
from other polling places within its jurisdiction; intimidation, or prepared by persons other than the
3. Each time the board adjourns, it shall make a total of member of the BEI, the BOC shall use the other
all the votes canvassed so far for each candidate for copies of said election returns and, if necessary, the
each office, furnishing the Commission in Manila by copy inside the ballot box which upon previous
the fastest means of communication a certified copy authority given by the Commission may be retrieved
thereof, and making available the data contained in accordance with Sec. 220 hereof (OEC, Sec. 235).
therein to the mass media and other interested 4. Discrepancies – If it appears to the BOC that there
parties; exists discrepancies in the other authentic copies of
4. As soon as the other election returns are delivered, the election returns from a polling place or
the board shall immediately resume canvassing discrepancies in the votes of any candidate in words
until all the returns have been canvassed; and figures in the same return, and in either case
5. The respective BOC shall prepare a certificate of the difference affects the results of the election, the
canvass duly signed and affixed with the imprint of Commission, upon motion of the BOC or any
the thumb of the right hand of each member, candidate affected and after due notice to all
supported by a statement of the votes received by candidates concerned, shall:
each candidate in each polling place and, on the a. proceed summarily to determine whether the
basis thereof, shall proclaim as elected the integrity of the ballot box had been preserved,
candidates who obtained the highest number of and
votes cast in the province, city, municipality or b. once satisfied thereof shall order the opening
barangay (Sec. 231, OEC). of the ballot box to recount the votes cast in
the polling place solely for the purpose of
NOTE: Failure to comply with this requirement shall determining the true result of the count of
constitute an election offense. votes of the candidates concerned (OEC, Sec.
236).
Duty of BOC on missing, lost or destroyed election
returns NOTE: In abovementioned cases, the BOC shall continue
the canvass of the remaining or unquestioned returns. If,
after the canvass of all the said returns, it should be

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determined that the returns which have been set aside correctly written shall be counted in his favor. (OEC, Sec.
will affect the result of the election, no proclamation 211)
shall be made except upon orders of the Commission
after due notice and hearing. Any proclamation made in
violation hereof shall be null and void (OEC, Sec. 238). REMEDIES AND JURISDICTION
IN ELECTION LAW
Void proclamation

A void proclamation is no proclamation at all, and the PETITION TO DENY DUE COURSE TO OR CANCEL A
proclaimed candidate’s assumption into office cannot CERTIFICATE OF CANDIDACY
deprive the COMELEC of its power to annul the
proclamation. A proclamation is void when it is based on A verified petition seeking to deny due course to
incomplete returns (Castromayor v. COMELEC, G.R. No. acertificate of candidacy may be filed by any person
120426, November 23, 1995) or when there is no exclusively on the ground that nay material
complete canvass yet (Jamil v. COMELEC, G.R. No. 123648, representation contained therein as required is false.
December 15, 1997). The petition may be filed not later than 25 days from the
time of filing of the certificate of candidacy, and shall be
Partial proclamation decided, after due notice and hearing, not later than 15
days before the election.
Notwithstanding pendency of any pre-proclamation
controversy, COMELEC may summarily order In addition, the COMELEC may motu proprio or upon
proclamation of winning candidates whose election will verified petition refuse to give due course to or cancel a
not be affected by the outcome of the controversy (RA certificate of candidacy if show that it was filed:
7166, Sec. 21).
1. Put the election process in mockery or disrepute;
Tie in election result 2. Cause confusion among the voters by the similarity of
the names of the registered candidates; or
1. Two or more candidates have received an equal and 3. Clearly demonstrate that the candidate has no bona
highest number of votes, or fide intention to run for the office for which the CoC
2. In cases where two or more candidates are to be has been filed and thus prevent a faithful
elected for the same position and two or more determination of the true will of the electorate.
candidates received the same number of votes for (OEC, Sec. 69)
the last place in the number to be elected (OEC, Sec.
240). PETITION FOR DISQUALIFICATION

Duty of the BOC in case of tie It is the remedy against any candidate who does not
possess all the qualifications required by the
The BOC, after recording this fact in its minutes, shall by Constitution or law, or who commits any act declared by
resolution, upon five days notice to all the tied law to be grounds for disqualification. (COMELEC Rules of
candidates, hold a special public meeting at which the Procedure, Rule 25, Sec.1)
BOC shall proceed to the drawing of lots of the
candidates who have tied and shall proclaim as elected Time of filing the petition for disqualification
the candidates who may be favored by luck. The BOC
shall forthwith make a certificate stating the name of the It may be filed any day after the last day for filing of
candidate who had been favored by luck and his certificates of candidacy, but not later than the date of
proclamation on the basis thereof (OEC, Sec. 240). proclamation. (COMELEC Rules of Procedure, Rule 25, Sec.
3)
BOC proceedings when considered illegal
Nature of the proceedings
There is an illegal proceeding of the BOC when the
canvassing is a sham or mere ceremony, the results of The petition is heard summarily (COMELEC Rules of
which are pre-determined and manipulated as when any Procedure, Rule 25, Sec. 4). However, the COMELEC
of the following circumstances are present: cannot disqualify a candidate without hearing and
1. Precipitate canvassing; affording him opportunity to adduce evidence to support
2. Terrorism; his side and taking into account such evidence.
3. Lack of sufficient notice to the members of the BOC;
or Final and executory judgment
4. Improper venue (COMELEC Res. 8804, Rule 4, Sec. 2,
March 22, 2010). A Decision or Resolution is deemed final and executory
if, in case of a Division ruling, no motion for
Idem Sonans (1994 Bar) reconsideration is filed within the reglementary period,
or in cases of rulings of the Commission En Banc, no
The idem sonans rule means that a name or surname restraining order is issued by the Supreme Court within
incorrectly written which, when read, has a sound five (5) days from receipt of the decision or resolution.
similar to the name or surname of a candidate when

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(2013 COMELEC Rules of Procedure, Rule 23, Sec. 8, as petition for suspension of the proclamation of the
amended by COMELEC Resolution No. 9523) respondent.

Grounds for disqualification 5. Submission of recommendation to Commission en

banc – The Law Department shall terminate the
1. Any person who has been declared by competent preliminary investigation within 30 days from
authority insane or incompetent, or has been receipt of the referral and shall submit its study,
sentenced by final judgment for subversion, report and recommendation to the Commission en
insurrection, rebellion or for any offense for which banc within 5 days from the conclusion of the
he has been sentenced to a penalty of more than 18 preliminary investigation. If it makes a prima facie
months or for a crime involving moral turpitude finding of guilt, it shall submit with such study the
(OEC, Sec. 12); Information for filing with the appropriate court.
2. Any candidate who, in action or protest in which he
is a party, is declared by final decision guilty of or Remedy if petition for disqualification is unresolved
found by COMELEC of having: on election day
a. Given money or other material consideration to
influence, induce or corrupt the voters of public The petitioner may file a motion with the Division or
officials performing electoral functions; Commission En Banc where the case is pending, to
b. Committed acts of terrorism to enhance his suspend the proclamation of the candidate concerned,
candidacy; provided that the evidence for the grounds to disqualify
c. Spent in his election campaign an amount in is strong. For this purpose, at least three (3) days prior to
excess of the allowed; and any election, the Clerk of the Commission shall prepare a
d. Solicited, received or made any contribution list of pending cases and furnish all Commissioners
prohibited under the Omnibus Election Code copies of said the list.
(OEC, Sec. 68).
3. Any person who is a permanent resident of or an In the event that a candidate with an existing and
immigrant to a foreign country, unless said person pending Petition to disqualify is proclaimed winner, the
has waived his status as permanent resident or Commission shall continue to resolve the said Petition
immigrant of a foreign country. (OEC, Sec. 68) (COMELEC Rules of Procedure, Rule 25, Sec. 5, as amended
by COMELEC Resolution 9523, Sept. 25, 2012).
NOTE: R.A. 9225 expressly provides for the conditions
before those who re-acquired Filipino citizenship may Petition to deny due course to or cancel CoC vs.
run for a public office in the Philippines. petition for disqualification

(See earlier discussion on the grounds for disqualification PETITION TO DENY DUE
PETITION FOR
under Candidacy for a longer list.) COURSE TO OR CANCEL
DISQUALIFICATION
CoC
Rules on disqualification cases Based on a statement of a Premised on Sec. 12 of
material representation in OEC, or Sec. 40 of the LGC.
1. Complaint filed before election – The Commission the said certificate that is
shall determine whether the acts complained of false.
have in fact been committed. If so, the COMELEC The person whose A person who is
shall order the disqualification of the respondent certificate is cancelled or disqualified under Sec. 68
candidate. denied due course under is merely prohibited to
Sec. 78 is not treated as a continue as a candidate.
2. Complaint not resolved before election – COMELEC candidate at all, as if he
may motu propio or on motion of any of the parties never filed a CoC.
refer the complaint to the Law Department of the
Commission. A person whose CoC has Thus, a candidate who is
been denied due course or disqualified under Sec. 68
3. Complaint filed after election and proclamation of cancelled under Sec. 78 can be validly substituted
winner – The complaint shall be dismissed. cannot be substituted under Sec. 77 of the OEC
because he is never because he remains a
NOTE: The complaint shall be referred for considered as candidate. candidate until
preliminary investigation to the Law Department. disqualified.

4. Complaint filed after election but before PETITION TO DECLARE FAILURE OF ELECTIONS
proclamation of winner – The complaint shall be
dismissed. Grounds for failure of elections
NOTE: The complaint shall be referred for Failure of elections may be declared in the following
preliminary investigation to the Law Department. If cases:
the Law Department makes a prima facie finding of 1. The election in any polling place has not been held
guilt and the corresponding information has been on the date fixed on account of force majeure,
filed with the trial court, the complainant may file a

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violence, terrorism, fraud, or other analogous 1. Declaration of Failure 1. Election is postponed
causes; of elections 2. Conduct elections
2. The election in any polling place had been 2. Holding of reasonably close to
suspended before the hour fixed by law for the continuation of elections not held, but
closing of the voting on account of force majeure, elections reasonably not later than 30 days
violence, terrorism, fraud, or other analogous close to election not from cessation of
causes; and held, but not later than cause
3. After the voting and during the preparation and 30 days from cessation
transmission of the election returns or canvass of cause.
thereof such election results in failure to elect on
account of force majeure, violence, fraud or
analogous causes. (Banaga Jr. v. COMELEC, G.R. No. ---
134696, July 31, 2000) Q: A and D both ran for the position of representative
of the first district of Northern Samar. A won while D
NOTE: There is failure of elections only when the will of placed second. D filed an election protest before the
the electorate has been muted and cannot be HRET against A, alleging terrorism committed by the
ascertained. (Benito v. COMELEC, G.R. No. 134913, Jan. 19, supporters of A before, during, and after the
2001) elections. D prayed for the annulment of A’s election.
A argued that HRET has no jurisdiction over the
Requisites for declaration of failure of elections protest on the premise that annulment of election
returns on the ground of terrorism is akin to a
The following requisites must concur: declaration of failure of elections which is under the
1. No voting has taken place in the precincts exclusive jurisdiction of COMELEC. Is A correct?
concerned on the date fixed by law, or even if there
was voting, the election nonetheless resulted in a A: NO. The power of the HRET to annul elections differs
failure to elect; and from the power granted to the COMELEC to declare
2. The votes cast would affect the results of the failure of elections. The Constitution no less, grants the
election. HRET with exclusive jurisdiction to decide all election
contests involving the members of the House of
Power to declare a failure of election Representatives, which necessarily includes those which
raise the issue of fraud, terrorism or other
The COMELEC en banc has the original and exclusive irregularities committed before, during or after the
jurisdiction to hear and decide petitions for declaration elections. To deprive the HRET the prerogative to annul
of failure of election or for annulment of election results. elections would undermine its constitutional fiat to
(R.A. 7166, Sec. 4) decide election contests. The phrase “election, returns
and qualifications” should be interpreted in its totality as
Failure of Elections vs. Postponement of Elections referring to all matters affecting the validity of the
contestee's title. Consequently, the annulment of election
FAILURE OF ELECTIONS POSTPONEMENT OF results is but a power concomitant to the HRET's
ELECTIONS constitutional mandate to determine the validity of the
Any serious cause of: contestee's title.
a. Force Majeure
b. Violence The power granted to the HRET by the Constitution is
c. Terrorism intended to be as complete and unimpaired as if it had
d. Loss or destruction of election paraphernalia remained originally in the legislature. Thus, the HRET, as
e. Other analogous cases the sole judge of all contests relating to the election,
returns and qualifications of members of the House of
Failure to elect and affect Serious impossibility to Representatives, may annul election results if in its
results of elections have free and orderly determination, fraud, terrorism or other electoral
elections irregularities existed to warrant the annulment. Because
Grounds may occur any Grounds must exist in doing so, it is merely exercising its constitutional duty
time before proclamation before voting to ascertain who among the candidates received the
majority of the valid votes cast. (Abayon v. HRET, G.R. No.
223032, May 3, 2016)
1. Verified petition by 1. Verified petition by ---
any interested person any interested person
2. Due Notice or motu proprio by PRE-PROCLAMATION CONTROVERSY
3. Hearing COMELEC en banc
2. Due notice Pre-proclamation controversy refers to any question
3. Hearing pertaining to or affecting the proceedings of the Board of
Canvassers, which may be raised by any candidate or by
any registered political party or coalition of political
parties, or by any accredited and participating party list
group, before the Board or directly with the COMELEC.
(COMELEC Resolution No. 8804, Rule 3, Sec. 1)

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b. Obviously manufactured or not authentic
Purpose 4. Substituted or fraudulent returns in controverted
polling places were canvassed, the results of which
To ascertain winners in the elections on basis of election materially affected the standing of the aggrieved
returns duly authenticated by BEI and admitted by the candidate(s).
BOC. (Abella v. Larrazabal, G.R. No. 87721-30, Dec. 21, 5. Manifest errors in the Certificates of Canvass or
1989) Election Returns (R.A. 7166, Sec. 15; Chavez v.
COMELEC, G.R. No. 16277, August 31, 2004)
Jurisdiction
NOTE: The enumeration is restrictive and exclusive.
COMELEC has exclusive jurisdiction over pre- (Suhuri v. Commission on Elections, G.R. No. 181869,
proclamation controversies arising from national, October 2, 2009).
regional, or local elections. . It may motu proprio or upon
written petition, and after due notice and hearing the Issues that cannot be raised
partial or total suspension of the proclamation of any
candidate-elect or annul partially or totally any 1. Appreciation of ballots, as this is performed by the
proclamation, if one has been made, as the evidence shall BEI at the precinct level and is not part of the
warrant. (OEC, Sec. 242).
proceedings of the BOC (Sanchez v. COMELEC, G.R.
Nature and execution of judgment No. 78461, August 1987);
2. Technical examination of the signatures and thumb
It shall be heard summarily by the COMELEC. Its decision marks of voters (Matalam v. COMELEC, G.R. No.
shall be executory after 5 days from receipt by the losing 123230, April 18, 1997);
party, unless otherwise ordered. 3. Prayer for re-opening of ballot boxes (Alfonso v.
COMELEC, G.R. No. 107847, June 2, 1994);
When not allowed (2008 Bar) 4. Padding of the Registry List of Voters of a
municipality, massive fraud and terrorism
1. For the positions of President, Vice President, (Ututalum v. COMELEC, G.R. No. 84843-44, January
Senator and Member of House of Representatives 22, 1990);
(RA 7166, Sec. 15). 5. Challenges directed against the BEI (Ututalum v.
COMELEC, G.R. No. 84843-44, January 22, 1990);
XPNs: and
a. Correction of manifest errors 6. Fraud, terrorism and other illegal electoral
b. Questions affecting the composition or practices. These are properly within the office of
proceedings of the Board of Canvassers election contests over which electoral tribunals
(COMELEC Res. No. 8804, March 22, 2010, Rule have sole, exclusive jurisdiction (Loong v. COMELEC,
3, Sec. 1); and G.R. No. 93986, December 22, 1992).

NOTE: However, this does not preclude the Effect of filing of pre-proclamation controversy
authority of the appropriate canvassing body,
motu proprio or upon written complaint of an 1. The period to file an election contest shall be
interested person, to correct manifest errors in suspended during the pendency of the pre-
the certificate of canvass or election before it proclamation contest in the COMELEC or the
(RA 9369, Sec. 38). Supreme Court;
2. The right of the prevailing party in the pre-
c. Determination of the authenticity and due proclamation contest to the execution of COMELEC’s
execution of certificates of canvass as provided decision does not bar the losing party from filing an
in Sec. 30 of RA 7166, as amended by RA 9369. election contest; and
3. Despite the pendency of a pre-proclamation contest,
2. No pre-proclamation cases are allowed in case of the COMELEC may order the proclamation of other
barangay election. (RA 6679, Sec. 9) winning candidates whose election will not be
affected by the outcome of the controversy.
Issues that may be raised (1996 Bar)
Termination of pre-proclamation cases
1. Illegal composition or proceedings of the board of
election canvassers; GR: At the beginning of term of the officers (RA 7166, Sec.
2. Canvassed election returns are either: 16).
a. Incomplete
b. Contain material defects XPNs:
c. Appear to be tampered with or falsified 1. When based on evidence, COMELEC determines
d. Contain discrepancies in the same returns or in that petition is meritorious;
authentic copies 2. The SC in a petition for certiorari issues a contrary
3. The election returns were: order; or
a. Prepared under duress, threats, coercion, 3. The case is not a pre-proclamation case.
intimidation (Peñaflorida v. COMELEC, G.R. No. 125950, November
18, 1997)

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 ELECTION LAW
ordinary action. (Vialogo v. COMELEC, G.R. No. 194143,
--- Oct. 4, 2011)
Q: Is the COMELEC precluded from exercising powers
over pre proclamation controversies, when the Where election protests can be filed
Electoral Tribunal acquires jurisdiction?
1. COMELEC – sole judge of all contests relating to
A: elections, returns, and qualifications of all elective
GR: YES. COMELEC is precluded from exercising powers regional, provincial and city officials (reviewable by
over pre-proclamation controversies when the Electoral SC under Rule 64 using Rule 65).
Tribunal acquires jurisdiction.
NOTE: Decisions of COMELEC En Banc are
XPNs: appealable to SC. (2001 Bar)
1. BOC was improperly constituted;
2. Proclamation was null and void; 2. Presidential Electoral Tribunal – President and Vice
3. Quo warranto is not the proper remedy President
4. What was filed was a petition to annul a 3. SET – Senator
proclamation, and not a quo warranto or election 4. HRET – representative
protest; and 5. RTC – over contests for municipal officials which
5. Election contest expressly made without prejudice may be appealed to COMELEC
to pre-proclamation controversy or it was made ad 6. MeTC or MTC – for barangay officials which may be
cautelam appealed to COMELEC
---
Grounds for the filing of election protests
Petition to annul or suspend the proclamation
1. Fraud;
It is a remedy where there is a manifest error on the face 2. Vote-buying;
of the transmitted returns or variance of results from the 3. Terrorism;
election returns and CoC, and a winning candidate is 4. Presence of flying voters;
about to be, or has already been proclaimed on the basis 5. Misreading or misappreciation of ballots;
thereof. 6. Disenfranchisement of voters;
7. Unqualified members of board of election inspector;
The COMELEC is required to hear the petition and
immediately and the ballots may be ordered to be 8. Other election irregularities.
manually recounted to verify the manifest errors or
alleged variance. NOTE: Pendency of election protest is not sufficient basis
to enjoin the protestee from assuming office.
NOTE: The filing of a petition to annul or suspend the
proclamation shall suspend the running of the period Content of an election protest
within which to file an election protest or quo warranto
proceedings. It must be initiated by filing a protest that must contain
the following allegations:
ELECTION PROTEST a. The protestant is a candidate who duly filed a COC
and was voted for in the election;
Post-election disputes b. The protestee has been proclaimed; and
c. The petition was filed within ten (10) days after the
They are disputes which arise or are instituted after proclamation. (Miro v. COMELEC, G.R. No. L-57574,
proclamation of winning candidates and which issues April 20, 1983)
pertain to the casting and counting of votes (election
protests), or to the eligibility or disloyalty of the winning Effect if the protestant accepts a permanent
candidates (quo warranto). appointment

Nature and purpose of an election contest Acceptance of a permanent appointment to a regular

office during the pendency of his protest is an
It is a special summary proceeding the object of which is abandonment of the electoral protest. The same is true if
to expedite the settlement of controversies between a protestant voluntarily sought election to an office
candidates as to who received the majority of legal votes. whose term would extend beyond the expiry date of the
term of the contested office, and after winning the said
NOTE: Statutes providing for election contests are to be election, took her oath and assumed office and there
liberally construed to the end that the will of the people after continuously serves it. The reason for this is that
in the choice of public officers may not be defeated by the dismissal of the protest would serve public interest
mere technical objections. It is imperative that his claim as it would dissipate the aura of uncertainty as to the
be immediately cleared not only for the benefit of the results of the presidential election, thereby enhancing
winner but for the sake of public interest, which can only the all-to crucial political stability of the nation during
be achieved by brushing aside technicalities of this period of national recovery. (Santiago v. Ramos,
procedure which protract and delay the trial of an P.E.T. Case No. 001, Feb. 13, 1996)

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Refers to an election contest relating to the qualifications
In assuming the office of Senator, one has effectively of an elective official on the ground of (1) ineligibility
abandoned or withdrawn this protest. Such or (2) disloyalty to the Republic of the Philippines.
abandonment or withdrawal operates to render moot The issue is whether respondent possesses all the
the instant protest. Moreover, the dismissal of this qualifications and none of the disqualifications
protest would serve public interest as it would dissipate prescribed by law. (A.M. No. 07-4-15-SC, May 15, 2007)
the aura of uncertainty as to the results of the election.
(Legarda v. De Castro, PET case no. 003, January 18, 2008) NOTE: Quo warranto proceedings against a
Congressman-elect, Senator-elect, President-elect and
Requisites for an execution pending appeal in VP-elect are brought before the appropriate electoral
election protest cases tribunals created by the Constitution.

1. It must be upon motion by the prevailing party with Quo warranto proceedings against any regional,
notice to the adverse party; provincial or city officials are brought before the
2. There must be good reasons for the said execution; COMELEC.
and
3. The order granting the said execution must state the Quo warranto proceedings against municipal officials
good reasons (Navarosa v. COMELEC, G.R. No. and barangay officials are brought before the RTCs and
157957, Sept. 18, 2003) MTCs respectively.

“Good reasons” Election protest vs. Quo warranto case under the OEC
(2001, 2006 Bar)
A combination of two or more of the following:
1. That public interest is involved or the will of the BASIS ELECTION QUO WARRANTO
electorate; PROTEST (2009 Bar)
2. The shortness of the remaining portion of the term By a losing By any voter who
of the contested office; candidate for the is a registered
3. The length of time that the election contest has been same office for voter in the
pending (Ramas v. COMELEC, G.R. No. 130831. Feb. Who may which the winner constituency
10, 1998). file filed his COC where the winning
candidate sought
NOTE: If instead of issuing a preliminary injunction in to be disqualified
place of a TRO, a court opts to decide the case on its ran for office
merits with the result that it also enjoins the same acts Who received the Whether the
covered by its TRO, it stands to reason that the decision majority or candidate who was
amounts to a grant of preliminary injunction. Such plurality of the proclaimed and
injunction should be deemed in force pending any appeal votes which were elected should be
from the decision. The view that execution pending legally cast? disqualified
appeal should still continue notwithstanding a decision because of
of the higher court enjoining such execution—does not Issue/s Whether there ineligibility or
make sense. It will render quite inutile the proceedings were disloyalty to the
before such court. (Panlilio v. COMELEC, G.R. No. 184286, irregularities in Philippines.
Feb. 26, 2010) the conduct of the
election which
Best pieces of evidence in an election contest affected its
results.
1. Ballots are the best and most conclusive evidence in
an election contest where the correctness of the Effect of filing an election protest or a petition for
number of votes of each candidate is involved (Delos quo warranto
Reyes, G.R. No. 170070, Feb. 28, 2007); and
2. Election returns are the best evidence when the Generally, it bars the subsequent filing of a pre-
ballots are lost, destroyed, tampered or fake. proclamation controversy or a petition to annul
proclamation. It also amounts to the abandonment of
Right to withdraw one filed earlier, thus, depriving the COMELEC of the
authority to inquire into and pass upon the title of the
A protestant has the right to withdraw his protest or protestee or the validity of his proclamation. Once the
drop polling places from his protest. The protestee, in competent tribunal has acquired jurisdiction over an
such cases, has no cause to complain because the election protest or a petition for quo warranto, all
withdrawal is the exclusive prerogative of the protestant. questions relative thereto will have to be decided in the
case itself and not in another proceeding. (Villamor v.
QUO WARRANTO COMELEC, G.R. No. 169865, July 21, 2006)

Quo warranto proceeding for an elective office (2012 ---

Bar) Q: In March 2013, COMELEC First Division issued a
resolution cancelling Kat’s CoC on the ground that

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 LOCAL GOVERNMENTS
she is not a citizen of the Philippines because of her 7. Appointment of new employees, creation of new
failure to comply with the requirements of the position, promotion, giving of salary increases;
Citizenship Retention and Re-acquisition Act of 2003. 8. Intervention of public officers and employees;
On April 8, 2013, Kat filed an MR claiming that she is 9. Undue influence;
a natural-born Filipino citizen, but it was denied by 10. Unlawful electioneering;
COMELEC on May 14 for lack of merit and declared it 11. Carrying firearms outside the residence or place of
final and executory. Kat, however, was proclaimed business; and
the winner of the May 2013 elections, and took her 12. Used of armored land, water or aircraft (OEC. Sec.
oath of office but is yet to assume office on June 30, 261)
2013. Kat contends that COMELEC lost jurisdiction
pursuant to Sec. 17, Art. 6 of the 1897 Constitution Prescriptive period of election offenses
which states that HRET has the exclusive jurisdiction
to be the “sole judge of all contests relating to the 5 years from the date of their commission (OEC, Sec. 267)
election, returns and qualifications” of the Members
of the HOR. Is the contention of Kat correct? Jurisdiction to investigate and prosecute election
offenses
A: NO. The Court has invariably held that once a winning
candidate has been proclaimed, taken his oath, According to Sec. 2 (6), Article IX-C of the 1987
and assumed office as a Member of the HOR, the Constitution, the COMELEC has jurisdiction to
COMELEC's jurisdiction over election contests relating to investigate and prosecute cases involving violations of
his election, returns, and qualifications ends, and the election laws, but it may delegate the power to the
HRET's own jurisdiction begins. Here, Kat, the winning Provincial prosecutor (People v. Judge Basilia, G.R. Nos.
candidate cannot be considered a Member of the HOR 83938-40, November 6, 1989). The COMELEC shall,
because, primarily, he has not yet assumed office. To through its duly authorized legal officers, have the
repeat what has earlier been said, the term of office of a power, concurrent with the other prosecuting arms of
Member of the HOR begins only “at noon on the thirtieth the government, to conduct preliminary investigation of
day of June next following their election.” Thus, until all election offenses punishable under this Code, and
such time, the COMELEC retains jurisdiction. (Reyes v. prosecute the same. (R.A. 9369, Sec. 43)
COMELEC, G.R. No. 207264, June 25, 2013)
--- Jurisdiction to try and decide violation of election
laws

PROSECUTION OF ELECTION OFFENSES GR: The RTC has the exclusive and original jurisdiction
to hear and decide any criminal action or proceedings for
violation of the OEC.
Authority to prosecute election offenses
XPN: The MTC has jurisdiction over offenses relating to
DOJ and COMELEC exercise concurrent jurisdiction in failure to register or failure to vote. (OEC, Sec 267)
conducting preliminary investigation of election
offenses. The grant of exclusive power to investigate and
prosecute cases of election offenses to the COMELEC was ELECTION AUTOMATION LAW
not by virtue of the Constitution but by the OEC which (R.A. 8436, AS AMENDED BY R.A. 9369)
was eventually amended by Sec. 43 of RA 9369. Thus, the
DOJ now conducts preliminary investigation of election Automated Election System (AES)
offenses concurrently with the COMELEC and no longer
as mere deputies (Jose Miguel T. Arroyo v. DOJ, et al., G.R. A system using appropriate technology which has been
No. 199082, Sept. 18, 2012). demonstrated in the voting, counting, consolidating,
canvassing, and transmission of election results, and
Prosecution of election offenses other electoral processes. [R.A. 9369, Sec. 2(1)]

Election offenses are prohibited acts such as: Equipment to be used in AES subject to public testing
1. Vote buying and vote selling (1991 Bar);
2. Conspiracy to bribe voters; COMELEC shall allow the political parties and candidates
3. Wagering upon result of election; or their representatives, citizens’ arm or their
4. Coercion of subordinates; representatives to examine and test the equipment or
device to be used in the voting and counting before
NOTE: Coercion of subordinates as an election voting starts. Test ballots and test forms shall be
offense [OEC, Sec. 261(d)] has been expressly provided by the Commission. (R.A. 9369, Sec. 12)
repealed by Sec. 2, R.A. 7890 and the express repeal
has been affirmed by SC in Javier v. COMELEC, G.R. Voter Verification Paper Audit Trail (VVPAT) or
No. 215847, January 12, 2016. Voter’s Receipt

5. Threats, intimidation, terrorism, use of fraudulent A mechanism that allows the voter to verify his or her
device or other forms of coercion; choice of candidates will ensure a free, orderly, honest,
6. Coercion of election officials and employees; peaceful, credible, and informed election. The voter is

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not left to wonder if the machine correctly appreciated
his or her ballot. The voter must know that his or her LOCAL GOVERNMENTS
sovereign will, with respect to the national and local
leadership, was properly recorded by the vote counting
machines. The minimum functional capabilities Local Government Unit (LGU)
enumerated under Section 6 of Republic Act 8436, as
amended, are mandatory. These functions constitute the A political subdivision of the State which is constituted by
most basic safeguards to ensure the transparency, law and possessed of substantial control over its own
credibility, fairness and accuracy of the upcoming affairs. Remaining to be an intra-sovereign subdivision of
elections. one sovereign nation, but not intended, however, to be an
imperium in imperio (empire within empire), the local
The law is clear. A “voter verified paper audit trail” government unit is autonomous in the sense that it is
requires the following: given more powers, authority, responsibility and
resources. (Alvarez v. Guingona, G.R. No. 118303, January
a. individual voters can verify whether the machines 31, 1996)
have been able to count their votes; and
b. that the verification at minimum should be paper Kinds of Local Governments
based
1. Provinces – A political and territorial corporate body
There appears to be no room for further interpretation consisting of several municipalities and cities.
of a “voter verified paper audit trail.” The paper audit 2. Municipalities – Consist of groups of barangays,
trail cannot be considered the physical ballot, because including municipal districts.
there may be instances where the machine may translate 3. Cities – Consist of more urbanized and developed
the ballot differently, or the voter inadvertently spoils barangays.
his or her ballot. a. Highly urbanized cities – Determined by law.
b. Cities not raised to highly urbanized category
The VVPAT ensures that the candidates selected by the but their charters prohibit their voters from
voter in his or her ballot are the candidates voted upon voting in provincial elections.
and recorded by the vote-counting machine. The voter c. Component cities – Still under the province in
himself or herself verifies the accuracy of the vote. In some way.
instances of Random Manual Audit, and election 4. Barangays – Basic political and territorial self-
protests, the VVPAT becomes the best source of raw data governing body corporate and is subordinate to the
for votes. (Bagumbayan-VNP Movement and Richard J. municipality or city of which it forms part.
Gordon v. COMELEC, G.R. No. 222731, March 8, 2016) 5. Autonomous Regions – A political and territorial
subdivision that has a certain degree of freedom from
the national government.

PUBLIC CORPORATIONS

It is one created by the State, either by general or

special act for purposes of administration of local
government, or rendering service for the public
interest.

Criterion to determine whether a corporation is a

public corporation

It is the relationship of the corporation to the state. If it

was created by the State as its own agency to help it in
carrying out its governmental functions, it is public.
Otherwise, it is private.

Dual characteristic of public corporation

1. Public or governmental - It acts as an agent of the

State as the government of the territory it occupies
and its inhabitants within the municipal limits.
The municipal corporation exercises, by
delegation, a part of the sovereignty of the state.
2. Private or proprietary - It acts as an agent of the
community in the administration of local affairs
which is wholly beyond the sphere of public
purposes, for which its governmental powers are

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 LOCAL GOVERNMENTS
conferred. It acts as separate entity for its own Proprietary in
purposes, and not as a subdivision of the State. nature.

NOTE: Not all corporations, which are not government

owned or controlled, are ipso facto private corporations.
These corporations are treated by law as agencies or
instrumentalities of the government which are not Created by the Created by Congress
subject to the tests of ownership or control and As to Who state, either by or by incorporators.
economic viability but to different criteria relating to Creates general act or
their public purposes/interests or constitutional policies special act.
and objectives and their administrative relationship to the
government or any of its Departments or Offices. Through legislation. 1) Original charters
or special laws; or
As to How
The economic viability test would only apply in cases Created 2) General
wherein the corporation is engaged in some economic corporation law, as a
activity or business function for the government. (Boy stock or non-stock
Scouts of the Philippines v. COA, G.R. No. 177131, June 7,
2011)

DISTINGUISHED FROM GOCC CLASSIFICATIONS

Government owned and controlled corporations Kinds of corporations

(GOCC)
1. Quasi-public corporations - Private corporations
Any agency organized as a stock or non-stock that render public service, supply public wants, or
corporation, vested with functions relating to public pursue other eleemosynary objectives. While
needs, whether governmental or proprietary in nature, purposely organized for the gain or benefit of its
and owned by the Government of the Republic of the members, they are required by law to discharge
Philippines directly or through its instrumentalities functions for the public benefit. It must be
either wholly or, where applicable as in the case of stock
corporations, to the extent of at least a majority of its 2. stressed that a quasi-public corporation is a
outstanding capital stock. [R.A. 10149, GOCC Governance specie of private corporation, but the
Act of 2011, Chapter 1, Sec. 3 (o)] qualifying factor is the type of service the former
renders to the public: if it performs a public
NOTE: Provided that such agencies are further service, then it becomes a quasi-public
categorized by Department of Budget, CSC, and COA for corporation. (Philippine Society for the Prevention
purposes of the exercise and discharge of their respective of Cruelty to Animals v. Commission on Audit, G.R. No.
powers, functions and responsibilities. [E.O. No. 292, 169752, September 25, 2007)
Administrative Code of 1987, Sec. 2 (13)]
3. Municipal corporations - A political and
Elements of a GOCC corporate body constituted by the incorporation of
inhabitants for the purpose of local government. It
1. Any agency organized as a stock or non-stock is established by law, partly as an agency of the
corporation State to assist in the civil government of the
2. Vested with functions relating to public needs country, but chiefly to regulate and administer the
whether governmental or proprietary in nature local or internal affairs of the city, town or district
3. Owned by the government directly or through its which is incorporated.
instrumentalities either wholly, or, where
applicable as in the case of stock corporations, to the
extent of at least fifty-one (51) of its capital stock. MUNICIPAL CORPORATIONS
(Leyson, Jr. v. Office of the Ombudsman, G.R. No.
134990, April 27, 2000)
Essential elements of a municipal corporation
Public corporation vs. GOCC
1. Legal creation or incorporation;
Public 2. Corporate name;
Basis GOCC
Corporation
NOTE: The Sangguniang Panlalawigan may, in
consultation with the Philippine Historical
Administration of Performance of
Commission, change the name of component cities
local government or functions relating to
As to and municipalities, upon the recommendation of the
rendering service public needs,
Purpose sanggunian concerned. (Local Government Code, Sec.
for the public whether
13)
interest. Governmental or

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219 FACULTY OF CIVIL LAW
 POLITICAL LAW
3. Inhabitants; and legal sense the successor of the old. The argument that
4. Territory. by the change in the sovereignty the old city was
extinguished in the same manner that the agency dies
Nature of a municipal corporation upon the death of the principal, loses sight of the dual
character of municipal corporations, government and
Every LGU created or recognized under the LGC is a body corporate. Only such governmental functions as are
politic and corporate endowed with powers to be incompatible with the present sovereignty may be
exercised by it in conformity with law. As such, it shall considered suspended. The juristic identity of the
exercise powers as a political subdivision of the National corporation is not affected by the change of sovereignty.
Government and as a corporate entity representing the The City of Manila is liable to its creditors. (Vilas v. City of
inhabitants of its territory. (Local Government Code, Sec. Manila, G.R. Nos. 53-54 and 207, April 3, 1911)
15) ---

Dual function of Municipal Corporation In the exercise of corporate, non-governmental

functions, municipal governments stand on the same
1. Public or governmental - It acts as an agent of the level as the National Government
State or the government of the territory it occupies
and its inhabitants. Examples are: The constitutional provision limiting the authority of the
a. Delivery of sand and gravel for the construction President over local governments to general supervision is
of a municipal bridge. (Municipality of San unqualified and applies to all constitutional powers of the
Fernando v. Firme, G.R. No. L-52179, April 8, President as regards the corporate functions of local
1901) governments, inasmuch as the Executive never had any
b. The collection and disposal of garbage as control over said functions. The same powers are not
conserving the public health is governmental in under the control even of Congress, for, in the exercise of
nature. (Department of Public Services Labor corporate, non-governmental or non-political functions,
Unions v. CIR, G.R. No. L-15458, January 28, municipal corporations stand practically on the same level
1961) as the National Government or the State as private
corporations. (Hebron v. Reyes, G.R. No. L-9124, July 28,
2. Private or proprietary - It acts as an agent of the 1958)
community in the administration of local affairs. As
such, it acts as a separate entity acting for its own Types of municipal corporations
purposes, and not as a subdivision of the State. (Bara
Lidasan v. COMELEC, G.R. No. L-28089, October 25, 1. De jure municipal corporations - Created or
1967) recognized by operation of law.
2. Municipal corporations by prescription -Exercised
Examples are: their powers from time immemorial with a charter,
a. Maintenance of cemeteries (City of Manila v. IAC, which is presumed to have been lost or destroyed.
G.R. No. 71159, November 15, 1989). 3. De facto municipal corporations – It is where the
b. The renting of a city of its private property. people have organized themselves, under color of
(Chamber of Filipino Retailers v. Villegas, G.R. No. law, into ordinary municipal bodies and have gone
L-29819, April 14, 1972) on, year after year, raising taxes, making
improvements, and exercising their usual
--- franchises, with their rights dependent quite as
Q: The plaintiffs are creditors of the City of Manila as much on acquiescence as on the regularity of
it existed during the Spanish colonial rule. As the their origin.
Philippine Islands was ceded to the United States, the
old City of Manila was reincorporated during the NOTE: Inquiries about the legal existence of a de
American regime. An action was brought against the facto corporation is reserved to the State in a
City of Manila upon the theory that the city, under its proceeding for quo warranto or other direct
present charter from the government of the proceeding. (Mun. of Malabang, Lanao del Sur v.
Philippine Islands, is the same juristic person as it Benito, G.R. No. L-28113, March 28, 1969)
existed during the Spanish rule and liable upon the
obligations of the old city. Is the present municipality ---
liable for the civil obligations of the city incurred Q: President Garcia issued EO 353 creating the
prior to the cession to the United States? municipal district of San Andres, Quezon, by
segregating from the municipality of San Narciso 6
A: YES. While military occupation or territorial cession barrios and their respective sitios. By virtue of EO.
may work a suspension of the governmental functions of 174, issued by President Macapagal, the municipal
municipal corporations, such occupation or cession does district of San Andres was later officially recognized
not result in their dissolution. The legal entity of the City to have gained the status of a fifth class municipality.
of Manila survived both its military occupation by, and
its cession to, the United States, and, as in law, the The Municipality of San Narciso filed a petition
present city, as the successor of the former city, is for quo warranto with the RTC, against the officials of
entitled to the property rights of its predecessor, it is the Municipality of San Andres, seeking the
also subject to its liabilities. The present city is in every declaration of nullity of EO 353. The municipality

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 LOCAL GOVERNMENTS
contended that EO 353, a presidential act, was a clear
usurpation of the inherent powers of the legislature A: NO. The case of Municipality of San Narciso is different
and in violation of the constitutional principle of from the case of Andong. Unlike in San Narciso, the
separation of powers. The Municipality of San Executive Order creating Andong was judicially declared
Andres, however, contended that the case had null and void ab initio by the Court in the case of Pelaez.
become moot and academic with the enactment of Andong also does not meet the requisites set forth by
Sec. 442 (d) of the LGC which provides for the Sec. 442 (d) of the LGC which requires that in order for a
continued existence of municipalities created by municipality created by executive order to receive
executive orders. Is the Municipality of San Narciso recognition, it must have a set of elective municipal
correct? officials holding office at the time of effectivity of the
LGC. Andong has never elected its municipal officers at
A: NO. EO 353 was issued in 1959 but it was only after all. Out of obeisance to the ruling in Pelaez, the national
30 years that the Municipality of San Narciso finally government ceased to recognize the existence of Andong,
decided to challenge the legality of the EO. Created in depriving it of its share of the public funds, and refusing
1959, the Municipality had been in existence for 6 years to conduct municipal elections for the void municipality.
when the Court decided the case of Pelaez v. Auditor Section 442(d) does not serve to affirm or reconstitute
General which declared void ab initio several EOs the judicially dissolved municipalities which had been
creating 33 municipalities in Mindanao. The ruling could previously created by executive orders. They remain
have sounded the call for a similar declaration of the inexistent unless recreated through specific legislative
unconstitutionality of EO 353 but it was not to be the enactments. The provision only affirms the legal
case. Granting that EO 353 was a complete nullity for personalities only of those municipalities which may
being result of an unconstitutional delegation of have been created through executive fiat but whose
legislative power, the Municipality of San Andres created existence have not been judicially annulled. (Camid v.
by the EO attained the status of a de facto municipal Office of the President, G.R. No. 161414, January 17, 2005)
corporation. Certain governmental acts all pointed to the ---
State’s recognition of the continued existence of the
municipality, i.e., it being classified as a fifth class NOTE:
municipality, the municipality had been covered by the
10th Municipal Circuit Court and its inclusion in the I. The color of authority required for the organization of
Ordinance appended to the 1987 Constitution. Equally a de facto municipal corporation may be:
significant is Section 442(d) of the Local Government 1. A valid law enacted by the legislature.
Code to the effect that municipal districts organized 2. An unconstitutional law, valid on its face, which
pursuant to presidential issuances or executive orders has either:
and which have their respective sets of elective a. been upheld for a time by the courts; or
municipal officials holding office at the time of the b. not yet been declared void; provided that a
effectivity of the Code shall henceforth be considered as warrant for its creation can be found in
regular municipalities. The power to create political some other valid law or in the recognition
subdivisions is a function of the legislature. Congress did of its potential existence by the general
just that when it incorporated Sec. 442 (d) in the LGC. laws or constitution of the state.
Curative laws are validly accepted in this jurisdiction,
subject to the usual qualification against impairment of II. There can be no de facto municipal corporation unless
vested rights. All considered, the de jure status of the either directly or potentially, such a de jure corporation is
Municipality of San Andres in the province of Quezon authorized by some legislative fiat.
must now be conceded. (Municipality Of San Narciso v.
Mendez, G.R. No. 103702, December 6, 1994) III. There can be no color of authority in an
--- unconstitutional statute alone, the invalidity of which is
--- apparent on its face.
Q: President Macapagal issued several executive
orders creating 33 municipalities in Mindanao, one IV. There can be no de facto corporation created to take
of which is the Andong in Lanao Del Sur. He justified the place of an existing de jure corporation, as such
the creation of such municipalities under Sec. 68 of organization would clearly be a usurper. (Municipality of
the Revised Administrative Code. However, in the Malabang v. Benito, G.R. No. L-28113, March 28, 1968)
case of Pelaez v. Auditor General, the Court held that
these EOs were null and void because Sec. 68 did not Creation of municipalities by the president
meet the requirements for a valid delegation of
legislative power to the executive branch. Among the The EOs, which created municipalities are declared
annulled EOs was the one creating the Municipality null and void because Sec. 68 of the Revised
of Andong. Petitioner Camid is a resident of Andong Administrative code was repealed by the 1935
and claims that despite the ruling in Pelaez, Andong constitution. (Pelaez v. Auditor General, G.R. No. L-
remains in existence citing the case of Municipality of 23825, December 24, 1965) Hence, municipalities
San Narciso where the Court affirmed the status of created by an EO could not claim to be a de facto
the Municipality of San Andres as a de facto municipal corporation, because there was no valid law
municipal corporation and citing Sec. 442 (d) of the authorizing incorporation.
LGC recognizing municipal corporations created by
executive order. Is Camid correct? ---

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Q: The Municipality of Sinacaban was created by EO
258 of then President Quirino. Based on the technical It primarily attends to the
description of EO 258, Sinacaban laid claims to 5 needs of the general
barrios located in the adjoining Municipality of welfare.
Jimenez. The Municipality of Jimenez, while
conceding that under EO 258 the disputed area is part REQUISITES FOR CREATION, CONVERSION,
of Sinacaban, nonetheless, asserted jurisdiction based DIVISION, MERGER, AND DISSOLUTION
on an agreement it had with the Municipality of
Sinacaban which fixed the common boundaries of the Territorial and political subdivisions
two municipalities. The Provincial Board declared the
disputed area to be part of Sinacaban. Jimenez filed a 1. Barangays
petition in the RTC alleging that in accordance with 2. Municipalities
Pelaez v. Auditor General, the power to create 3. Cities
municipalities is essentially legislative and 4. Provinces (1987 Constitution, Art. X, Sec.1)
consequently, Sinacaban which was created by an
executive order, had no legal personality and no right Authority to create municipal corporations
to assert the territorial claim vis-à-vis Jimenez, of
which it remains part. The RTC, however, held that A LGU may be created, divided, merged, abolished, or its
Sinacaban is a de facto corporation since it had boundaries substantially altered either:
completely organized itself even prior to the Pelaez 1. By law enacted by Congress in case of
case and exercised corporate powers for forty years province, city, municipality or any other
before its existence was questioned. Does the political subdivision;
municipality of Sinacaban legally exist? 2. By an ordinance passed by the Sangguniang
Panlalawigan or Sangguniang Panlungsod
A: YES. The factors are present as to confer to Sinacaban concerned in the case of a barangay located
the status of at least a de facto municipal corporation, in within its territorial jurisdiction, subject to
the sense that its legal existence has been recognized and such limitations and requirements prescribed
acquiesced publicly and officially. Sinacaban had been in in the Local Government Code (LGC). (Local
existence for 16 years when Pelaez v. Auditor General was Government Code, Sec. 6)
decided on, yet the validity of EO 258 had never been
questioned. On the contrary, the State and even the NOTE: Failure to provide for seat of government is not
municipality of Jimenez itself have recognized Sinacaban’s fatal. Under Sec. 12 of the LGC, the city can still establish
corporate existence. Lastly, Sec. 442 (d) of the LGC must a seat of government after its creation. (Samson v.
be deemed to have cured any defect in the creation of Aguirre, G.R. No. 133076, September 22, 1999)
Sinacaban. (Mun. of Jimenez v. Baz Jr, G.R. No. 105746,
December 2, 1996) Requisites or limitations imposed on the creation or
--- conversion of municipal corporations

Essential requisites of de facto corporation (VACA) 1. Plebiscite requirement – Must be approved by

majority of the votes cast in a plebiscite called for
1. Valid law authorizing incorporation such purpose in the political unit or units directly
2. Attempt in good faith to organize under it affected. (Local Government Code, Sec. 20)
3. Colorable compliance with law
4. Assumption of corporate powers NOTE: The residents of the mother province must
participate in the plebiscite to conform to the
De facto Municipal Corporation vs. Municipal constitutional requirement. (Tan v. COMELEC, G.R. No.
Corporation by Estoppel (2010 Bar) 73155, July 11, 1986; Padilla v. COMELEC, G.R. No.
103328, October 19, 1992)
De Facto Estoppel
A public corporation that A corporation which is so Income requirement – Must be sufficient and based
exists although it has not defectively formed as not on acceptable standards to provide for all essential
complied with the to be a de facto government facilities and services and special
statutory requirements corporation but is functions, commensurate with the size of its
like: considered a corporation population as expected by the LGU concerned.
in relation to someone
a. Authorization by a who dealt with it and Average annual income for the last consecutive
valid law acquiesced in its exercise year should be at least:
b. A colorable and bona of its corporate functions a. Province – P 20M
fide attempt to or entered into a contract b. Highly Urbanized City – P 50M
organize under a with it. c. City – P 100M (R.A. 9009 amending Sec. 450
valid law (Martin, Public of LGC)
c. An assumption of Corporations, 1985 d. Municipality – P 2.5M
powers conferred ed.,p.20)
under the law NOTE: The income requirement for the conversion
of municipality to a component city only includes

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 LOCAL GOVERNMENTS
locally generated average annual income. (RA. 9009, challenged “cities” claim that it was the intent of the
amending Sec. 450 of LGC) Congress to grant them exemption from the income
requirement, as per the deliberations of the 11th
2. Population requirement – determined as the total Congress.
number of inhabitants within the territorial
jurisdiction of the LGU concerned. The a. Are the cityhood laws valid?
required minimum population shall be: b. What will become of the cityhood bills and
a. Barangay – 2,000 their deliberations that were pending at
the adjournment of the 11th Congress?
XPN: barangays located in:
i. Metro Manila – 5,000 A:
ii. Highly urbanized cities – 5,000 a. YES. The cities covered by the Cityhood Laws not
only had conversion bills pending during the 11th
b. Municipality – 25,000 Congress, but have also complied with the
c. City – 150,000 requirements of the LGC prescribed prior to its
d. Highly Urbanized Cities – 200,000 amendment by RA 9009. Congress undeniably
e. Province – 250,000 gave these cities all the considerations that
justice and fair play demanded. Hence, the Court
3. Land requirement - Must be contiguous, unless it is should do no less by stamping its imprimatur to the
comprised of two or more islands, or is separated by a clear and unmistakable legislative intent and by
LGU independent to the others. It must be properly duly recognizing the certain collective wisdom of
identified by metes and bounds with technical Congress. Congress, who holds the power of the
descriptions, and sufficient to provide for such basic purse, only sought the well-being of respondent
services and facilities. Area requirements are: municipalities in enacting the Cityhood Laws, having
a. Barangay – may be created out of a contiguous seen their respective capacities to become
territory. (LGC, Sec. 386) component cities of their provinces, which was
b. Municipality – 50 sq. km. (LGC, Sec. 442) temporarily stunted by the enactment of RA 9009. By
c. City – 100 sq. km (LGC, Sec. 450). allowing respondent municipalities to convert into
d. Province – 2,000 sq.km. (LGC, Sec. 461) component cities, Congress desired only to uphold
the very purpose of the LGC, i.e., to make the LGUs
NOTE: Compliance with the foregoing indicators shall be “enjoy genuine and meaningful local autonomy to
attested to by: enable them to attain their fullest development as
a. The Department of Finance (Income requirement); self-reliant communities and make them more
b. NSO (Population requirement); and effective partners in the attainment of national
c. The Lands Management Bureau of DENR (Land goals,” which is the very mandate of the
requirement) [LGC, Sec. 7(c)] Constitution. (League of Cities of the Philippines. v.
COMELEC, G.R. No. 176951, April 12, 2011)
Corporate existence
b. Notwithstanding that both the 11th and 12th
Corporate existence of LGUs commences upon the Congress failed to act upon the pending Cityhood
election and qualification of its chief executive and bills, both the letter and intent of Sec. 450 of the
majority of the members of its sanggunian, unless LGC, as amended by RA 9009, were carried on
some other time is fixed therefor by law or ordinance until the 13th Congress, when the Cityhood Laws
creating it. (LGC, Sec. 14) were enacted. The exemption clauses found in the
individual Cityhood Laws are the express
--- articulation of the intent to exempt respondent
Q: At the end of the 11th Congress’ existence, several municipalities from the coverage of RA 9009.
bills aiming to convert certain municipalities into (League of Cities of the Philippines v. COMELEC, G.R.
cities were pending. The same were not, however, No. 176951, February 15, 2011)
passed into law. During the 12th Congress, RA 9009 ---
was enacted, amending the LGC which increased the
income requirement for the conversion of NOTE: On November 18, 2008, the SC ruled the cityhood
municipalities into cities, from P20M to P100M. laws unconstitutional. On December 21, 2009, it
Congress deliberated on exempting the reversed the ruling. Then again, on August 24, 2010, it
municipalities mentioned earlier from the new decided to uphold the 2008 ruling. And finally, on April
income requirement, yet, no concrete action came 12, 2011 it upheld the constitutionality of the creation of
out of such deliberations. the 16 new cities.

Through their respective sponsors, the ---

municipalities filed individual cityhood bills Q: May Congress validly delegate to the ARMM
containing a common proviso exempting them Regional Assembly the power to create provinces,
from the new income requirement. The Congress cities, and municipalities within the ARMM pursuant
approved the same. Concerned parties protested to Congress’s plenary legislative powers?
that such laws allowed a “wholesale conversion” of
municipalities and is therefore unconstitutional. The A: IT DEPENDS. There is no provision in the

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Constitution that conflicts with the delegation to between the entitlement of a city to a district, on one
regional legislative bodies of the power to create hand, and the entitlement of a province to a district on
municipalities and barangays. However, the creation of the other. For while a province is entitled to at least a
provinces and cities is another matter. Only Congress representative, with nothing mentioned about
can create provinces and cities, because the creation of population, a city must first meet a population
the same necessarily includes the creation of legislative minimum of 250,000 in order to be similarly entitled
districts, a power only Congress can exercise under (Aquino and Robredo v. COMELEC, G.R. No. 189793, April
Sec. 5 Art. VI of the Constitution and Sec. 3 of the 7, 2010).
Ordinance appended to it. ---
---
The ARMM Regional Assembly cannot enact a law Q: Sec. 461 of the LGC provides that before a
creating a national office like the office of a district province could be created, it must comply with the
representative of Congress because the legislative 2000-km land area requirement. Art. 9(2) of the LGC-
powers of the ARMM Regional Assembly operate only IRR, however, exempts the creation of provinces
within its territorial jurisdiction as provided in Sec. 20 Art. with more than one island from the said land area
X of the Constitution. (Sema v. COMELEC, G.R. No. 177597, requirement. Thus, Dinagat Province – consisting of
July 16, 2008) more than one island, with a total land area of
--- 802.12 sq. km, and has an average annual income of
--- P82 M as certified by the Bureau of Local
Q: Congress enacted a law creating the legislative Government Finance– was created through a law
district of Malolos based on a certification of the pursuant to the exception expressly provided in the
demographic projection from NSO stating that by said LGC-IRR provision. Is the creation of Dinagat
2010, Malolos is expected to reach the population of Province valid?
250,000, hence entitling it to one legislative district.
Is the law valid? A: YES. When the exemption was expressly provided in
Art. 9(2) of the LGC-IRR, the inclusion was intended to
A: NO. Congress cannot establish a new legislative correct the congressional oversight in Sec. 461 of the
district based on a projected population of the LGC and to reflect the true legislative intent, which is to
National Statistics Office (NSO) to meet the allow an exception to the land area requirement in cases
population requirement of the Constitution in the of non-contiguity also as regards to provinces especially
reapportionment of legislative districts. considering the physical configuration of the Philippine
archipelago. The land area requirement should be read
A city that has attained a population of 250,000 is together with the territorial contiguity, whereas the land
entitled to a legislative district only in the “immediately area, while considered as an indicator of viability of LGU,
following election.” In short, a city must first attain the is not conclusive in showing that Dinagat Province
250,000 population, and thereafter, in the immediately cannot become a province taking into account its
following election, such city shall have a district average annual income. Hence, the basic services to its
representative. There is no showing in the present case constituents has been proven possible and sustainable
that the City of Malolos has attained or will attain a making Dinagat Province ready and capable of becoming
population of 250,000, whether actual or projected, a province. (Navarro v. Executive Secretary, G.R. No.
before May 10, 2010 elections. Thus, the City of Malolos 180050, April 12, 2011)
is not qualified to have a legislative district of its own
under Sec. 5(3), Art. VI of the 1987 Constitution and Sec In exempting provinces composed of one or more islands
3 of the Ordinance appended to the 1987 Constitution. from both the contiguity and land area requirements,
(Aldaba v. COMELEC, G.R. No. 188078, January 25, 2010) Article 9 of the IRR cannot be considered inconsistent
--- with the criteria under Section 461 of the Local
--- Government Code. Far from being absolute regarding
Q: Congress enacted a law reapportioning the application of the requirement of a contiguous territory
composition of the Province of Camarines Sur and of at least 2,000 square kilometers as certified by the
created legislative districts thereon. Frankie Land Management Bureau, Section 461 allows for said
challenged the law because it runs afoul to the exemption by providing, under paragraph (b) thereof,
constitutional requirement that there must be at that the territory need not be contiguous if (the new
least a population of 250,000 to create a legislative province) comprises two or more islands or is separated
district. COMELEC argued that the mentioned by a chartered city or cities which do not contribute to
requirement does not apply to provinces. Is the the income of the province. For as long as there is
250,000 population standard an indispensable compliance with the income requirement, the legislative
requirement for the creation of a legislative district intent is, after all, to the effect that the land area and
in provinces? population requirements may be overridden by the
established economic viability of the proposed province.
A: NO. Sec. 5(3), Art. VI of the 1987 Constitution (2014 Bar)
which requires 250,000 minimum population apply ---
only for a city to be entitled to a representative but not ---
for a province. Q: Congress passed a law providing for the
apportionment of a new legislative district in CDO
The provision draws a plain and clear distinction City. COMELEC subsequently issued a resolution

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 LOCAL GOVERNMENTS
implementing said law. Zander now assails the 10, Art. X of the Constitution?
resolution, contending that rules for the conduct of a
plebiscite must first be laid down, as part of the A: YES. While conversion to an HUC is not explicitly
requirements under the Constitution. According to provided in Sec. 10, Art. X of the Constitution, the Court
Zander, the apportionment is a conversion and nevertheless observes that the conversion of a
division of CDO City, falling under Sec. 10 Art. X of the component city into an HUC is a substantial alteration of
Constitution, which provides for the rule on boundaries.
creation, division, merger, and abolition of LGUs.
Decide. “Substantial alteration of boundaries” involves and
necessarily entails a change in the geographical
A: There is no need for a plebiscite. CDO City configuration of LGU or units. However, the phrase
politically remains a single unit and its administration is “boundaries” should not be limited to the mere physical
not divided along territorial lines. Its territory remains one, referring to the metes and bounds of the LGU, but
whole and intact. Thus, Sec. 10, Art. X of the Constitution also to its political boundaries. It also connotes a
does not come into play. modification of the demarcation lines between political
subdivisions, where the LGU’s exercise of corporate
No plebiscite is required for the apportionment or power ends and that of the other begins. And as a
reapportionment of legislative districts. A legislative qualifier, the alteration must be “substantial” for it to be
district is not a political subdivision through which within the ambit of the constitutional provision. (Umali v.
functions of government are carried out. It can more COMELEC, G.R. No. 203974, April 22, 2014)
appropriately be described as a representative unit ---
that merely delineates the areas occupied by the
people who will choose a representative in their NOTE: It is the duty of the President to declare a city as
national affairs. A plebiscite is required only for the highly urbanized after it shall have met the minimum
creation, division, merger, or abolition of local requirements, upon proper application and ratification
government units. (Bagabuyo v. COMELEC, G.R. No. in a plebiscite by qualified voters therein (Sec. 453, LGC).
176970, December 8, 2008) The provision makes it ministerial for the President,
--- upon proper application, to declare a component city as
--- highly urbanized once the minimum requirements,
Q: The Municipality of Dagupan was converted into which are based on certifiable and measurable indices
the City of Dagupan by virtue of Act No. 170. However, under Sec. 452 of LGC, are satisfied. The mandatory
before the government of the city was organized, the language “shall” used in the provision leaves the
government of the Municipality of Dagupan continued President with no room for discretion. (Ibid.)
to act as a municipality. Are the acts of the
municipality considered to be acts of the city? Requirements for division and merger of LGUs

A: NO. After Act No. 170 which created the City of 1. It shall not reduce the income, population or land
Dagupan took effect and before the organization of the area of the LGU/s concerned to less than minimum
government of the City of Dagupan, the political requirements prescribed;
subdivision which comprises the territory of the 2. Income classification of the original LGU/s shall not
Municipality of Dagupan continued to act as a municipality fall below its current income classification prior to
because the government of the city had not yet been division (LGC, Sec. 8);
organized and the other officers thereof appointed or 3. Plebiscite be held in LGUs affected (LGC, Sec. 10);
elected. The conversion of that municipality into a city did 4. Assets and liabilities of the municipality/ies
not make ipso facto the acts of the elected officials of the affected by such organization or creation of a
said municipality the acts of the City of Dagupan because new municipality shall be equitably distributed
the latter can only act as a city through the city officers between the LGUs affected and new LGU. [RA 688,
designated by law after they have been appointed or Sec. 1 (3)]
elected and have qualified. In the meantime or during the
period of transition, the Municipality had to function NOTE: When a municipal district of other territorial
temporarily as such; otherwise there would be chaos or no divisions is converted or fused into a municipality all
government at all within the boundaries of the territory. property rights vested in original territorial
The status of the Municipality may be likened to that of a organization shall become vested in the government of
public officer who cannot abandon his office although the the municipality. [RA 688, Sec. 1 (4)]
successor had already been appointed, and has to
continue his/her office whatever length of time the Abolition of LGU
interregnum, until the successor qualifies or takes
possession of the office. (Mejia v. Balolong, G.R. No. L-1925, LGUs may be abolished by:
September 16, 1948) 1. Congress – In case of provinces, city,
--- municipality, or any other political subdivision.
--- 2. Sangguniang Panlalawigan or Sangguniang
Q: Is the conversion of a component city to a Panlungsod – In case of a barangay
highly urbanized city considered within the ambit
of “creation, division, merger, abolition or XPN: Metropolitan Manila area and in
substantial alteration of boundaries” under Sec. cultural communities.

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When RA 7720 upgraded the status of XYZ City from a
LGUs may be abolished when its income, population, or municipality to an independent component city, it
land area has been irreversibly reduced to less than required the approval of its people through a plebiscite
the minimum standards prescribed for its creation, as called for that purpose because the consent of the people
certified by the national agencies in Sec. 17 to Congress serves as a checking mechanism to any exercise of
or to the sanggunian concerned. The law or ordinance legislative power. Hence, there is no reason why the
abolishing a LGU shall specify the province, city, same should not be done when RA 8528 downgrades the
municipality, or barangay with which the LGU sought status of their city. The rules cover all conversions,
to be abolished will be incorporated or merged. (LGC, whether upward or downward so long as the result is a
Sec. 9) material change in the LGU directly affected. (Miranda v.
Aguirre, G.R. No. 133064, September 16, 1999)
Required vote on creation, division, merger, abolition, ---
or substantial alteration of boundaries of LGUs ---
Q: BP Blg. 885 was enacted creating a new province
Majority of the votes cast in a plebiscite called for the in the island of Negros to be known as the Province
purpose in the political unit or units directly affected. of Negros del Norte. Pursuant to such, the COMELEC
conducted a plebiscite. Petitioners opposed this and
NOTE: Said plebiscite shall be conducted by the contended that BP Blg. 885 is unconstitutional and is
COMELEC within one hundred twenty (120) days from not in complete accord with the LGC because the
the date of effectivity of the law or ordinance effecting voters of the parent province of Negros Occidental,
such action, unless said law or ordinance fixes another other than those living within the territory of the
date. (LGC, Sec. 10) new province of Negros del Norte, were not included
in the plebiscite. Are the petitioners correct?
A barangay may officially exist on record and the fact
that nobody resides in the place does not result in A: YES. The Constitution provides that whenever a
its automatic cessation as a unit of local government. province is created, divided or merged and there is
substantial alteration of the boundaries, “the approval of
Under the LGC of 1991, the abolition of an LGU may be a majority of votes in the plebiscite in the unit or units
done by Congress in the case of a province, city, affected” must first be obtained. The creation of the
municipality, or any other political subdivision. In the proposed new province of Negros del Norte will
case of a barangay, except in Metropolitan Manila area necessarily result in the division and alteration of the
and in cultural communities, it may be done by existing boundaries of Negros Occidental (parent
the Sangguniang Panlalawigan or Sangguniang province). Plain and simple logic will demonstrate that
Panglungsod concerned subject to the mandatory two political units would be affected. The first would be
requirement of a plebiscite conducted for the purpose the parent province of Negros Occidental because its
in the political units affected. (Sarangani v. COMELEC, boundaries would be substantially altered. The other
G.R. No. 135927, June 26, 2000) affected entity would be composed of those in the area
subtracted from the mother province to constitute the
--- proposed province of Negros del Norte. (Tan v.
Q: Through a plebiscite, RA 7720 took effect and COMELEC, G.R. No. 73155, July 11, 1986)
converted Municipality XYZ to an independent ---
component city. RA 8528 was later enacted and ---
amended RA 7720 that downgraded XYZ from an Q: Prior to R.A. 7675 which converts the
independent component city to a component city Municipality of Mandaluyong into a Highly
without the approval of the people of XYZ in a Urbanized City, the municipalities of Mandaluyong
plebiscite. Is a plebiscite required when a local and San Juan belonged to only one legislative
government unit is downgraded? district. After the law was passed, the people of
Mandaluyong approved of the conversion of the
A: YES. Sec. 10, Art. X of the Constitution calls for the Municipality of Mandaluyong into a highly urbanized
people of the LGU directly affected to vote in a plebiscite city. The turnout at the plebiscite was only 14.41% of
whenever there is a material change in their rights and the voting population. Nevertheless, there were
responsibilities. many who voted "yes" than those who voted "no." By
virtue of these results, RA. 7675 was deemed ratified
They may call the downgrading of XYZ to a component and in effect. Should the people of San Juan
city as a mere transition but they cannot blink away from participate in the plebiscite on whether to convert
the fact that the transition will radically change its Mandaluyong into a highly urbanized city?
physical and political configuration as the rights and
responsibilities of its people. As such, the city mayor will A: NO. The principal subject involved in the plebiscite
be placed under the administrative supervision of the was the conversion of Mandaluyong into a highly
provincial governor; the resolutions and ordinances of urbanized city. The matter of separate district
the city council will have to be reviewed by the representation was only ancillary thereto. Thus, the
Provincial Board; taxes collected by the city will have to inhabitants of San Juan were properly excluded from the
be shared with the province; and there would be a said plebiscite as they had nothing to do with the change
reduction in their IRA. Thus, the changes are substantial. of status of neighboring Mandaluyong. (Tobias et al. v.
Abalos, G.R. No. L-114783, December 8, 1994)

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 LOCAL GOVERNMENTS
--- development. But to enable the country to develop as a
whole, the programs and policies effected locally must
NOTE: When an inquiry is focused on the legal existence be integrated and coordinated towards a common
of a body politic, the action is reserved to the State in a national goal. (Pimentel Jr. v. Aguirre, G.R. No. 132988, July
proceeding for quo warranto, which must be timely filed, 19, 2000)
or any other direct proceeding which must be brought in
the name of the Republic. (Municipality of San Narciso v. Decentralization
Mendez, G.R. No. 103702, December 6, 1994)
Decentralization is a decision by the central government
authorizing its subordinates, whether geographically or
PRINCIPLES OF LOCAL AUTONOMY functionally defined, to exercise authority in certain areas.
It involves decision-making by sub-national units. It is
typically delegated power, wherein a larger government
Local autonomy means a more responsive and chooses to delegate certain authority to more local
accountable local government structure instituted governments. (Disomangcop v. Secretary of Public Works
through a system of decentralization. Autonomy does
not contemplate making mini-states out of local and Highways, G.R. No. 149848, November 25, 2004)
government units, as in the federal governments of the
USA. Autonomy, in the constitutional sense, is subject to Forms of Decentralization: Deconcentration and
the guiding star, though not control, of the legislature, Devolution
albeit the legislative responsibility under the
Constitution and as the “supervision clause” itself Deconcentration Devolution
suggest, is to wean local government units from over- It is administrative in It connotes political
dependence on the central government. nature and involves the decentralization, or the
transfer of functions or the transfer of powers,
Autonomy, however, is not meant to end the relation of delegation of authority and responsibilities, and
partnership and interdependence between the central responsibility from the resources for the
administration and local government units. Local national office to the performance of certain
governments, under the Constitution, are subject to regional and local office. functions from the central
regulation, however limited, and for no other purpose government to the local
than precisely, albeit paradoxically, to enhance self- This is also referred to as government units. This is a
government. (Ganzon v. Court of Appeals, G.R. No. 93252, administrative more liberal form of
August 5, 1991) decentralization. decentralization since
there is actual transfer of
Forms of Local Autonomy: Decentralization of powers and
Administration and Decentralization of Power responsibilities.

Decentralization of Decentralization of
Administration Power NOTE: Devolution aims to grant greater autonomy to local
The central government Involves abdication, by the government units in cognizance of their right to self-
merely delegates national government, of government, to make them self-reliant, and to improve
administrative powers to political power in favor of their administrative and technical capabilities.
political subdivisions in LGUs declared to be (Disomangcop v. Secretary of Public Works and Highways,
order to broaden the base autonomous. The G.R. No. 149848, November 25, 2004)
of the government power, autonomous government
and incidentally making becomes accountable not Consequences of Devolution
LGUs more responsive and to the central authorities
accountable. but to its constituency 1. The devolution shall include the transfer to the LGU
(Limbona v. Mangelin, G.R. the records, equipment, and other assets and
It relieves the central No .80391, February 28, personnel of national agencies and offices
government of the burden 1989). corresponding to the devolved powers, functions,
of managing local affairs and responsibilities.
and enables it to 2. Personnel of said national agencies or offices shall be
concentrate on national absorbed by the LGUs to which they belong or in
concerns. whose areas they are assigned to the extent that it is
administratively viable.

NOTE: The rights accorded to such personnel

Scope of Delegated Power pursuant to civil service law, rules and regulations
shall not be impaired.
Under the Philippine concept of local autonomy, only
administrative powers over local affairs are delegated 3. Regional directors who are career executive service
to political subdivisions. In turn, economic, political and officers and other officers of similar rank in the said
social developments at the smaller political units are regional offices who cannot be absorbed by the LGU
expected to propel social and economic growth and shall be retained by the national government,

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227 FACULTY OF CIVIL LAW
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without any diminution of rank, salary or regular head. (Plaza II and Tuazon v. Cassion, G.R. No.
tenure. [LGC, Sec. 17 (i)] 136809, July 27, 2004)
---
NOTE: The LGC did not fully devolve the enforcement of ---
the small-scale mining law to the provincial government, Q: When can the local chief executive choose not to
as its enforcement is subject to the supervision, control absorb a national government agency personnel?
and review of the DENR, which is in charge, subject to
law and higher authority, of carrying out the State's A: Absorption is mandatory on the part of the local chief
constitutional mandate to control and supervise the executive and incumbent upon the personnel absorbed.
exploration, development, utilization of the country's The word “shall” is used both in Sec. 17 (i) of LGC, and
natural resource. (League of Provinces of the Philippines Sec. 2 (a)(2) of EO. 503, which connotes a mandatory
v. DENR, G.R. 175368, April, 11, 2013) order.

--- The only instance that the LGU concerned may choose
Q: Before the passage of RA. 7160, the task of not to absorb the NGA personnel is when absorption is
delivering basic social services was dispensed by the not administratively viable, meaning, it would result
national government through the DSWD. Upon the to duplication of functions. However, in the absence of
promulgation and implementation of the LGC, some the recognized exception, devolved permanent
of the functions of the DSWD were transferred to the personnel shall be automatically reappointed (Sec.
LGUs. Mayor Plaza II signed a MOA for the 2(12), EO 503) by the local chief executive concerned
Devolution of the DSWD to the City of Butuan. immediately upon their transfer which shall not go
DSWD’s services, personnel, assets and liabilities, beyond June 30, 1992. (CSC v. Yu, G.R. No. 189041, July 31,
and technical support systems were transferred to 2012)
its city counterpart. By virtue of the MOA, Mayor ---
Plaza issued EO. 06-92 reconstituting the City Social
Services Development Office (CSSDO), devolving or
adding thereto 19 national DSWD employees, its POWERS OF LOCAL GOVERNMENTS
office was transferred from the original CSSDO
building to the DSWD building.
Sources of powers of a municipal corporation
Aida, Lorna and Fe refused to recognize Joaquin as 1. Constitution
their new head and to report at the DSWD building. 2. Statutes (e.g. LGC)
They contended that the issuance of EO. 06-92 by 3. Charter
Mayor Plaza and the designation of Joaquin as 4. Doctrine of right to self-government
Officer-in-charge of the CSSDO are illegal. Despite
Mayor Plaza’s series of orders to Aida, Lorna and Fe Classifications of municipal powers
to report for work at the DSWD building, they failed
to do so. 1. Express, implied, inherent
2. Government or public, corporate or private
Is Mayor Plaza empowered to issue EO. 06-92 in 3. Intramural, extramural
order to give effect to the devolution and have
authority over Aida, Lorna and Fe? NOTE: Extramural powers – Boundaries usually
mark the limit for the exercise of the police powers
A: YES. Section 17 of the Local Government Code by a municipality. However, in certain instances –
authorizes the devolution of personnel, assets and the performance of police functions, the
liabilities, records of basic services, and facilities of a preservation of the public health and acquisition of
national government agency to local government units. territory for water supply – the municipality is
Under this Code, the term “devolution” refers to the act granted police power beyond its boundaries. (Rivera
by which the national government confers power and v. Campbell, G.R. No. 11119, March 23, 1916)
authority upon the various local government units to
perform specific functions and responsibilities. As a 4. Mandatory, directory; ministerial, discretionary
consequence, EO. 503 was enacted by then President
Corazon Aquino to govern and ensure the efficient Execution of powers of LGU
transfer of responsibilities to the LGU concerned. Section
2 (g) provides: “The local chief executive shall be 1. Where statute prescribes the manner of exercise,
responsible for all devolved functions. He may delegate procedure must be followed.
such powers and functions to his duly authorized 2. Where the law is silent, LGU has the discretion to
representative xxx”. select reasonable means and methods to
exercise
It is clear that Mayor Plaza is empowered to issue EO.
06-92 in order to give effect to the devolution decreed Governmental powers of LGU
by the LGC. As the local chief executive of Butuan City,
Mayor Plaza has the authority to reappoint devolved 1. Police power
personnel and may designate an employee to take 2. Basic services and facilities
charge of a department until the appointment of a 3. Power to generate and apply resources

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 LOCAL GOVERNMENTS
4. Power of eminent domain 1. The interests of the public generally, as
5. Taxing Power distinguished from those of a particular class, require
6. Reclassification of Land the interference of the state. (Equal Protection Clause)
7. Local legislative power 2. The means employed are reasonably necessary for
8. Closure and opening of roads the attainment of the object sought to be
9. Corporate Powers accomplished and not duly oppressive. (Due Process
10. Liability of LGUs Clause)
11. Settlement of Boundary Disputes 3. Exercisable only within the territorial limits of the
12. Succession of Local Officials LGU, except for protection of water supply. (LGC,
13. Discipline of Local Officials Sec. 16)
14. Authority over police units 4. Must not be contrary to the Constitution and the
laws.
Interpretation of powers of LGUs
NOTE: There must be a concurrence of a lawful subject and
Where a law is capable of two interpretations, one in favor lawful method. (Lucena Grand Central v. JAC, G.R. No.
of centralized power in Malacañang and the other 148339 February 23, 2005)
beneficial to local autonomy, the scales must be weighed
in favor of autonomy. (San Juan v. Civil Service Commission, Tests when police power is invoked as the rationale
G.R. No. 92299, April 29, 1991) for the valid passage of an ordinance

POLICE POWER 1. Rational relationship test – An ordinance must pass

the requisites as discussed above.
Nature of the police power of the LGU 2. Strict scrutiny test – The focus is on the presence of
compelling, rather than substantial, governmental
The police power of the LGU is not inherent. LGUs interest and on the absence of less restrictive means
exercise the police power under the general welfare for achieving that interest. (Fernando v. St.
clause. (LGC, Sec. 16,) Scholastica’s College, G.R. No. 161107, March 12, 2013)

General welfare clause ---

Q: The Sangguniang Panlungsod of Davao City
LGUs shall exercise powers that are necessary, appropriate, enacted an ordinance imposing a ban against aerial
or incidental for its efficient and effective governance, and spraying as an agricultural practice by all
those which are essential to the promotion of general agricultural entities within Davao City. Pursuant to
welfare. Within their respective territorial jurisdiction, the ordinance, the ban against aerial spraying would
LGUs shall ensure and support, among other things, the be strictly enforced three months thereafter. The
preservation and enrichment of culture, promote health Pilipino Banana Growers and Exporters Association,
and safety, enhance the right of the people to a balanced Inc. (PBGEA) filed a petition in the RTC to challenge
ecology, encourage and support the development of the constitutionality of the ordinance, alleging that
appropriate and self-reliant scientific and technological the ordinance exemplified the unreasonable
capabilities, improve public morals, enhance economic exercise of police power and violated the equal
prosperity and social justice, promote full employment protection clause. The RTC declared that the
among its residents, maintain peace and order, and ordinance is valid and constitutional saying that the
preserve the comfort and convenience of their inhabitance. City of Davao had validly exercised police power
(RA 7160, Sec. 16) under the General Welfare Clause of the Local
Government Code and that the ordinance was
Two branches of the General Welfare Clause consistent with the Equal Protection Clause. On
appeal, however, the CA, reversed the judgment of
1. General Legislative Power – Authorizes the the RTC. Is the ordinance valid?
municipal council to enact ordinances and make
regulations not repugnant to law, as may be A: NO. Requiring the respondents and other affected
necessary to carry into effect and discharge the individuals to comply with the consequences of the ban
powers and duties conferred upon the municipal within the three-month period under pain of penalty
council by law. like fine, imprisonment and even cancellation of
2. Police Power Proper – Authorizes the municipality business permits would definitely be oppressive as to
to enact ordinances as may be necessary and constitute abuse of police power.
proper for the health and safety, prosperity,
morals, peace, good order, comfort, and The ordinance violated the equal protection clause. The
convenience of the municipality and its imposition of the ban is too broad because the ordinance
inhabitants, and for the protection of their applies irrespective of the substance to be aerially
property. (Rural Bank of Makati v. Municipality of applied and irrespective of the agricultural activity to be
Makati, July 2, 2004) conducted. Such imposition becomes unreasonable
inasmuch as it patently bears no relation to the
Requisites/limitations for the proper exercise of purported inconvenience, discomfort, health risk and
the police power (IREN) environmental danger which the ordinance seeks to
address. The burden will now become more onerous to

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229 FACULTY OF CIVIL LAW
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various entities, including those with no connection empowered the mayor to order the closure and removal
whatsoever to the intended purpose of the ordinance. of illegally constructed establishments for failing to
(Mosqueda vs. Pilipino Banana Growers & Exporters secure the necessary permits.
Assoc., G.R. No. 189185 & 189305, August 16, 2016)
--- In the case at bar, Boracay West Cove admittedly failed to
secure the necessary permits, clearances, and exemptions
Ministerial duty of the Local Chief Executive before the construction, expansion, and operation of
Boracay West Cove’s hotel in Malay, Aklan. To recall,
The LGC imposes upon the city mayor, to “enforce all laws Boracay West Cove declared that the application for
and ordinances relative to the governance of the city.” As zoning compliance was still pending with the office of the
the chief executive of the city, he has the duty to enforce mayor even though construction and operation were
an ordinance as long as it has not been repealed by the already ongoing at the same time. As such, it could no
Sanggunian or annulled by the courts. He has no other longer be denied that it openly violated Municipal
choice. It is his ministerial duty to do so. (Social Justice Ordinance 2000-131. (Aquino v. Municipality of Malay,
Society v. Atienza, Jr., G.R. No. 156052, March 7, 2007) Aklan, G.R. No. 211356, September 29, 2014)
---
Abatement of nuisance without judicial proceeding
NOTE: Based on law and jurisprudence, the office of the
The abatement of nuisances without judicial mayor has quasi-judicial powers to order the closing and
proceedings applies to nuisance per se or those which demolition of establishments. This power granted by the
affect the immediate safety of persons and property and LGC, is not the same power devolved in favor of the LGU
may be summarily abated under the undefined law of under Sec. 17 (b)(2)(ii), which is subject to review by the
necessity. (Tayaban v. People, G.R. No. 150194, March 6, DENR. The fact that the building to be demolished is
2007) located within a forestland under the administration of
the DENR is of no moment, for what is involved herein,
The LGUs have no power to declare a particular thing as a strictly speaking, is not an issue on environmental
nuisance unless such a thing is a nuisance per se; nor can protection, conservation of natural resources, and the
they effect the extrajudicial abatement of a nuisance per maintenance of ecological balance, but the legality or
accidens. Those things must be resolved by the courts in illegality of the structure. Rather than treating this as an
the ordinary course of law. (AC Enterprises, Inc. v. Frabelle environmental issue then, focus should not be diverted
Properties Corp., G.R. No. 166744, November 2, 2006) from the root cause of this debacle-compliance. (Aquino v.
Municipality of Malay, Aklan, supra.)
---
Q: The Mayor of Malay, Aklan ordered through Powers deemed implied in the power to grant
Executive Order No. 10 the demolition of the Boracay permits and licenses
West Cove Resort and Hotel without first conducting
judicial proceedings on the ground that the said hotel Power to issue licenses and permits include power to
was built on a "no build zone" as demarcated in revoke, withdraw or restrict through the imposition of
Municipal Ordinance 2000-131. The owner of the certain conditions. However, the conditions must be
Boracay West Cove imputed grave abuse of discretion reasonable and cannot amount to an arbitrary
on the part of the Mayor. Is the owner correct? interference with the business. (Acebedo Optical
Company, Inc. v. CA, G.R. No. 100152, March 31, 2000)
A: NO. Generally, LGUs have no power to declare a
particular thing as a nuisance unless such a thing is a Object of the permit requirement
nuisance per se. Despite the hotel’s classification as a
nuisance per accidens, however, We still find in this case The object of the permit requirement is the proper
that the LGU may nevertheless properly order the hotel’s supervision of the enumerated businesses, trades or
demolition. This is because, in the exercise of police occupation.
power and the general welfare clause, property rights of
individuals may be subjected to restraints and burdens in NOTE: The issuance of permits and licenses is a function
order to fulfill the objectives of the government. of the local chief executive.
Otherwise stated, the government may enact legislation
that may interfere with personal liberty, property, lawful
businesses and occupations to promote the general License/permit to do business vs. License to engage
welfare. in a profession

One such piece of legislation is the LGC, which authorizes License/Permit To Do License to Engage in a
city and municipal governments, acting through their Business Profession
local chief executives, to issue demolition orders. Under Granted by the local Board or Commission
existing laws, the office of the mayor is given powers not authorities. tasked to regulate the
only relative to its function as the executive official of the particular profession.
town; it has also been endowed with authority to hear
issues involving property rights of individuals and to
come out with an effective order or resolution thereon.
Pertinent herein is Sec. 444 (b)(3)(vi) of the LGC, which

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 LOCAL GOVERNMENTS

Authorizes the person to Authorizes a natural in no case shall walls and fences be built within the
engage in the business or person to engage in the five meter parking area allowance located between
some form of commercial practice or exercise of his the front monument line and the building line of
activity. or her profession. commercial and industrial establishments and
educational and religious institutions. Is the
ordinance valid?
---
A: NO. It has long been settled that the State may not,
Q: Acebedo Optical Company applied with the Office
under the guise of police power, permanently divest
of the City Mayor of Iligan for a business permit. The
owners of the beneficial use of their property solely to
City Mayor issued such permit subject to special
preserve or enhance the aesthetic appearance of the
conditions that the company cannot put up an optical
community. Compelling the respondents to construct
clinic but only a commercial store; it cannot examine
their fence in accordance with the assailed ordinance is,
patients and prescribe glasses; and it cannot sell
thus, a clear encroachment on their right to property,
eyeglasses without a prescription from an
which necessarily includes their right to decide how best
independent optometrist. Samahan ng Optometrist
to protect their property. (Fernando v. St. Scholastica's
ng Pilipinas lodged a complaint against Acebedo for
College, G.R. No. 161107, March 12, 2013)
violating the conditions which resulted in the
---
revocation of its permit. Did the City Mayor have the
---
authority to impose special conditions in the grant of
Q: Can the City Mayor of Manila validly take custody
the business permit?
of several women of ill repute and deport them as
laborers without knowledge and consent to the said
A: NO. Police power is essentially regulatory in nature
deportation?
and the power to issue license or grant business permits,
if for a regulatory purpose, is within the ambit of this
A: NO. One can search in vain for any law, order, or
power. This power necessarily includes the power to
regulation, which even hints at the right of the Mayor of
revoke and to impose conditions. However, the power to
the city of Manila or the chief of police of that city to
grant or issue licenses or business permits must always
force citizens of the Philippine Islands — and these
be exercised in accordance with law, with utmost
women despite their being in a sense lepers of society
observance of the rights of all concerned to due process
are nevertheless not chattels but Philippine citizens
and equal protection of the law. What is sought by
protected by the same constitutional guaranties as are
Acebedo from the City Mayor is a permit to engage in the
other citizens — to change their domicile from Manila to
business of running an optical shop. It does not purport
another locality. (Villavicencio v. Lukban, G.R. No. L-
to seek a license to engage in the practice of optometry. A
14639, March 25, 1919)
business permit is issued primarily to regulate the
---
conduct of business and the City Mayor cannot, through
---
the issuance of such permit, regulate the practice of a
Q: May an LGU require customers to fill out a
profession. Such a function is within the exclusive
prescribed form stating personal information such as
domain of the administrative agency specifically
name, gender, nationality, age, address and
empowered by law to supervise the profession, in this
occupation before they could be admitted to a motel,
case the Professional Regulations Commission and the
hotel, or lodging house?
Board of Examiners in Optometry. (Acebedo Optical
Company Inc. v. Court of Appeals, G.R. No. 100152, March
A: YES. The Ordinance was enacted precisely to minimize
31, 2000)
certain practices hurtful to public morals such as the
---
increase in the rate of prostitution, adultery and
fornication in Manila traceable in great part to the
NOTE: However, certain professions may be affected by
existence of motels, which "provide a necessary
the exercise of police power. An ordinance in Manila was
atmosphere for clandestine entry, presence and exit" and
held not to regulate the practice of massage, much less
thus become the "ideal haven for prostitutes and thrill-
restrict the practice of such profession. Instead, the end
seekers". Precisely it was intended to curb the
sought to be obtained was to prevent the commission of
opportunity for the immoral or legitimate use to which
immorality under the practice of prostitution in an
establishment masquerading as a massage clinic where
such premises could be and are being devoted. (Ermita-
the operation thereof offers to massage superficial parts
Malate Hotel and Motel Operations Association v. City
of the bodies of customers for hygienic or aesthetic
Mayor of Manila, G.R. No. L-24693, July 31, 1967)
purposes. (Physical Therapy Organization of the
---
Philippines v. Municipal Board of Manila, G.R. No. L-10488,
---
August 30, 1957)
Q: Mayor Lim signed into law, City Ordinance 7774,
which prohibits short time admission in hotels,
---
motels, lodging houses, pension houses and similar
Q: The Sangguniang Panglungsod of Marikina City
establishments in the City of Manila to protect public
enacted an ordinance “Regulating the Construction of
morals. Pursuant to the above policy, short-time
Fences and Walls in the City of Marikina”. The
admission and rate, wash-up rate or other similarly
ordinance provided, among others, that fences should
concocted terms, are hereby prohibited in hotels,
not be more than 1 meter and fences in excess of 1
motels, inns, lodging houses, pension houses and
meter shall be 80% see-thru. It further provided that

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231 FACULTY OF CIVIL LAW
 POLITICAL LAW
similar establishments in the City of Manila. the property for their own purposes, property owners
Petitioners argued that the Ordinance is relinquish the use of the space as an arcade for
unconstitutional and void since it violates the right pedestrians.
to privacy and the freedom of movement; it is an
invalid exercise of police power; and it is an Subsequently, Justice Gancayo sought to be exempted
unreasonable and oppressive interference in their from the application of the ordinance, which the City
business. Is the ordinance valid? Council responded favorably in his favor.

A: NO. Individual rights may be adversely affected only MMDA then sent a notice of demolition to Justice
to the extent that may fairly be required by the Gancayco, alleging that a portion of his building
legitimate demands of public interest or public violates the National Building Code in relation to the
welfare. However well-intentioned the Ordinance may ordinance. Is the Ordinance a valid exercise of police
be, it is in effect an arbitrary and whimsical intrusion power in regulating the use of property in a business
into the rights of the establishments as well as their zone?
patrons. The Ordinance needlessly restrains the
operation of the businesses of the petitioners as well as A: YES. In the exercise of police power, property rights of
restricting the rights of their patrons without sufficient individuals may be subject to restraints and burdens in
justification. The Ordinance rashly equates wash rates order to fulfill the objectives of the government. Property
and renting out a room more than twice a day with rights must bow down to the primacy of police power
immorality without accommodating innocuous because it must yield to the general welfare. It is clear that
intentions. (White Light Corp., v. City of Manila, G.R. No. the objective of the ordinance were the health and safety
122846, January 20, 2009) of the city and its inhabitants. At the time he ordinance
--- was passed, there was no national building code, thus
--- there was no law which prohibits the city council from
Q: The Sangguniang Panlungsod of Pasay City passed regulating the construction of buildings, arcades and
an ordinance requiring all disco pub owners to have sidewalks in their jurisdiction. (Gancayco v. City
all their hospitality girls tested for the AIDS virus. Government of Quezon City, G.R. No. 177807, Oct. 11, 2011)
Both disco pub owners and the hospitality girls ---
assailed the validity of the ordinance for being ---
violative of their constitutional rights to privacy and Q: Rivera was found washing her clothing near the
to freely choose a calling or business. Is the ordinance Santolan pumping station near Boso-Boso dam.
valid? Explain. (2010 Bar) Rivera’s act of washing clothing interfered with the
purity of the water which was supplied to Manila by
A: YES. The ordinance is a valid exercise of police power. the Santolan pumping station. She was charged with
The right to privacy yields to certain paramount rights of violation of Sec. 4(f) of Ordinance No. 149 which
the public and defers to the exercise of police power. The prohibited washing of garments in the waters of any
ordinance is not prohibiting the disco pub owners and the river or water course. Manila’s municipal board
hospitality girls from pursuing their calling or business adopted the same section by virtue of the Acts of the
but is merely regulating it. (Social Justice Society v. Philippine Commission and was authorized to purify
Dangerous Drugs Board, G.R. No. 157870, Nov. 3, 2008) the source of water supply as well as the drainage
--- area of such water supply. Rivera contented that the
municipal court of the City of Manila and the Court of
This ordinance is a valid exercise of police power, because First Instance of the City of Manila had no
its purpose is to safeguard public health. (Beltran v. jurisdiction to try her for the crime committed. Does
Secretary of Health, G.R. No. 133640, November 25, 2005) the CFI of Manila have jurisdiction over the offense,
considering that the washing of clothes was in the
NOTE: Municipal corporations cannot prohibit the Mariquina River?
operation of night clubs. They may be regulated, but not
prevented from carrying on their business. (Dela Cruz v. A: YES. Boundaries usually mark the limit for the
Paras, G.R. Nos. L-42571-72, July 25, 1983) exercise of the police powers by the municipality.
However, in certain instances – the performance of
--- police functions, the preservation of public health and
Q: The Quezon City Council issued Ordinance 2904 acquisition of territory for water supply – the
which requires the construction of arcades for municipality is granted police power beyond its
commercial buildings to be constructed in zones boundaries. The Santolan pumping station is a part of the
designated as business zones in the zoning plan of public water supply of Manila with water taken from that
Quezon City, along EDSA. However, at the time the part of the Mariquina River, in the waters of which
ordinance was passed there was yet no building code Rivera washed clothes. Public water supply is not limited
passed by the legislature. Thus, the regulation of the to water supply owned and controlled by a municipal
construction of the buildings are left to the discretion corporation, but should be construed as meaning a
of the LGUs. Under this ordinance, the city council supply of water for public and domestic use, furnished or
required that the arcade is to be created, in a way, that to be furnished from water works. The provisions of the
building owners are not allowed to construct his wall Ordinance No. 149 would be meaningless and absurd if
up to the edge of the property line, thereby creating a made applicable only to the Santolan pumping station
space under the first floor. In effect, instead of using and not to that part of the Mariquina River immediately

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 LOCAL GOVERNMENTS
above it and from which the pumping station draws 1. An Ordinance is enacted by the local legislative
water for the use of the inhabitants of the City of Manila. council authorizing the local chief executive, in
(Rivera v. Campbell, G.R. No. L-11119, March 23, 1916) behalf of the LGU, to exercise the power of
--- eminent domain or pursue expropriation
--- proceeding over a particular private property.
Q: The Sanggunian of Cagayan De Oro enacted 2. It must be for Public use, purpose or welfare or
Ordinance No. 3353 prohibiting the issuance of for the benefit of the poor or landless
business permits and cancelling existing business
permits for the operation of casinos; and Ordinance NOTE: Property already devoted to public use
No. 3375-93, prohibiting the operation of a casino. Z may not be taken for another public use. (City of
assailed the validity of the ordinances on the ground Manila v. Chinese Community of Manila, G.R. No. L-
that both violated P.D. 1869 which permits the 14355, October 31, 1919)
operation of casinos, centralized and regulated by
PAGCOR. The Sanggunian, however, contended that 3. There must be payment of just Compensation
pursuant to the LGC, they have the police power to 4. A valid and definite Offer has been previously
prohibit the operations of casinos for the general made to the owner of the property sought to be
welfare. Was there a valid exercise of police power? expropriated, but said offer was not accepted.
(Municipality of Paranaque v. V.M. Realty
A: NO. PD 1869 creating the PAGCOR expressly Corporation, G.R. No. 127820. July 20, 1998)
authorized it to centralize and regulate all games of
chance including casinos. This has not been amended by Due process requirements in eminent domain
the LGC which empowers LGUs to prevent or suppress (PRP)
only those forms of gambling prohibited by law. Casino
gambling is, however, authorized under PD 1869. This Offer must be in writing specifying:
decree has the status of a statute that cannot be annulled 1. Property sought to be acquired
or amended by a mere ordinance. PAGCOR can set up 2. The reason for the acquisition
casinos with or without the consent of the host local 3. The price offered
government. (Magtajas v. Pryce Properties and PAGCOR,
G.R. No. 111097, July 20, 1994) NOTE:
--- 1. If owner accepts offer: a contract of sale will be
executed.
EMINENT DOMAIN 2. If owner accepts but at a higher price: Local chief
(2005, 2010 Bar) executive shall call a conference for the purpose of
reaching an agreement on the selling price; If
Local government units have no inherent power of agreed, contract of sale will be drawn. (Implenting
eminent domain. Local governments can exercise such Rules and Regulations of LGC, Art. 35)
power only when expressly authorized by the
Legislature. By virtue of the Local Government Code, Elements for an authorized immediate entry
Congress conferred upon local government units the
power to expropriate (Masikip v. City of Pasig, G.R. No. 1. Filling of a complaint for expropriation which is
136349, January 23, 2006). sufficient in form and substance
2. Deposit of the amount equivalent to fifteen
However, while the power of eminent may be validly percent (15%) of the fair market value of the
delegated to LGUs, the exercise of such power by the property to be expropriated based on its current tax
delegated entities is not absolute. The scope of such declaration.
delegated power is narrower than that of the delegating
authority and may be exercised only when authorized by NOTE: Upon compliance, the issuance of writ of
Congress, subject to its control and the restraints possession becomes ministerial. (City of Iloilo v. Legaspi,
imposed through the law conferring the power. Strictly G.R. No. 154614, Nov. 25, 2004)
speaking, the power of eminent domain delegated to an
LGU is in reality not eminent but “inferior”. The national Phases of expropriation proceedings
legislature is still the principal of the LGUs, and the latter
cannot go against the principal’s will or modify the same. 1. The determination of the authority of the
(Beluso v. Municipality of Panay, G.R. No. 153974, August plaintiff to exercise the power of eminent
7, 2006) domain and the propriety of its exercise in the
context of the facts involved in the suit.
NOTE: LGUs may, through its local chief executive and
acting pursuant to an ordinance, exercise power of NOTE: It ends with an order, if not dismissal of
eminent domain for public use, or purpose, or welfare action, of condemnation declaring that the plaintiff
for the benefit of the poor and the landless, upon has a lawful right to take the property sought to
payment of just compensation. (LGC, Sec. 19) be condemned, for the public use or purpose
described in the complaint, upon the payment of just
Requisites for the valid exercise of the power of compensation to be determined as of the date of
eminent domain (OPO) the filing of the complaint.

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233 FACULTY OF CIVIL LAW
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An order of dismissal, if this be ordained, would the particular property to be expropriated must be
be a final one, since it finally disposes of the necessary, does not mean an absolute, but only a
action and leaves nothing more to be done by the reasonable or practical necessity, such as would
Court on the merits. The order of condemnation combine the greatest benefit to the public with the
shall be a final one, as the Rules expressly state, in least inconvenience and expense to the condemning
the proceedings before the Trial Court, no objection party and the property owner consistent with such
to the exercise of the right of condemnation (or the benefit. (Masikip v. City of Pasig, G.R. No. 136349, Jan. 23,
propriety thereof) shall be filed or heard. 2006)

2. The determination by the RTC of the just ---

compensation for the property sought to be taken. Q: May LGUs expropriate a property to provide a
right-of-way to residents of a subdivision?
This is done by the Court with the assistance of not
more than three (3) commissioners. The order A: NO. Considering that the residents who need a
fixing the just compensation on the basis of the feeder road are all subdivision lot owners, it is the
evidence before, and findings of, the commissioners obligation of the subdivision owner to acquire a right-of-
would be final. It would finally dispose of the way for them. However, the failure of the subdivision
second stage of the suit, and leave nothing more to owner to provide an access road does not shift the
be done by the Court regarding the issue. (Brgy. San burden to the LGU concerned. To deprive
Roque, Talisay, Cebu v. Hrs. of Francisco Pastor, G.R. respondents of their property instead of compelling the
No. 138896, June 20, 2000) subdivision owner to comply with his obligation under
the law is an abuse of the power of eminent domain
NOTE: LGU’s prolonged occupation of private property and is patently illegal. Worse, the expropriation will
without the benefit of expropriation proceedings entitles actually benefit the subdivision’s owner who will be
the landowner to damages. (City of Iloilo v. Judge able to circumvent his commitment to provide road
Contreras-Besana, G.R. No. 168967, February 12, 2010) access to the subdivision in conjunction with his
development permit and license to sell from the
Satisfaction of “public use” requirement Housing and Land Use Regulatory Board, and also be
relieved of spending his own funds for a right-of-way.
In cases where only a few could actually benefit from (Barangay Sindalan v. CA G.R. No. 150640, March 22, 2007)
the expropriation of the property does not diminish its ---
public use character. It is simply not possible to provide ---
for all at once, land and shelter, for all who need them. Q: Municipality of Panay issued resolutions
Corollary to the expanded notion of public use, authorizing the municipal government through the
expropriation is not anymore confined to vast tracts of Mayor to initiate expropriation proceedings. A
land and landed estates. It is therefore of no moment petition for expropriation was filed by the
that the land sought to be expropriated is less than half Municipality of Panay. Petitioners are the owners of
a hectare only. Through the years, the public use parcels of land which is going to be expropriated by
requirement in eminent domain has evolved into a the LGU. Petitioners argue that such expropriation
flexible concept, influenced by changing conditions. was based only on a resolution and not on an
Public use now includes the broader notion of indirect ordinance contrary to Sec. 19 of LGC. Is the exercise of
public benefit or advantage including in particular, eminent domain by the Municipality of Panay valid?
urban land reform and housing. (Philippine Columbian
Association v. Panis, G.R. No. L-106528, Dec. 21, 1993) A: NO. The LGC expressly requires an ordinance for the
purpose of expropriation, and a resolution which merely
NOTE: The passage of RA 7279, the “Urban expresses the sentiment of the municipal council will not
Development and Housing Act of 1992” introduced a suffice. As respondent's expropriation in this case was
limitation on the size of the land sought to be based merely on a resolution, such expropriation is clearly
expropriated for socialized housing. The law expressly defective. While the Court is aware of the constitutional
exempted “small property owners” from expropriation policy promoting local autonomy, the court cannot grant
of their land for urban land reform. (City of Mandaluyong judicial sanction to an LGU's exercise of its delegated
v. Aguilar, G.R. No. 137152, Jan. 29, 2001) power of eminent domain in contravention of the very law
giving it such power. [Beluso v. Municipality of Panay
Satisfaction of “genuine necessity” requirement (Capiz), G.R. No. 153974, Aug. 7, 2006]
---
The right to take private property for public
purposes necessarily originates from “the necessity”
and the taking must be limited to such necessity. In City ---
of Manila v. Chinese Community of Manila, it is held that Q: Spouses Yusay owned a parcel of land, half of
the very foundation of the right to exercise eminent which they used as their residence, and the rest they
domain is a genuine necessity and that necessity must rented out to nine other families. Allegedly, the land
be of a public character. Moreover, the ascertainment was their only property and only source of income.
of the necessity must precede or accompany and not The Sangguniang Panglungsod of Mandaluyong City
follow the taking of the land. In City of Manila v. adopted a resolution authorizing the City Mayor to
Arellano Law College, the necessity within the rule that take the necessary legal steps for the expropriation

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 LOCAL GOVERNMENTS
of the land of the spouses spouses for the purpose of includes destruction, restriction, diminution, or
developing it for low cost housing for the less interruption of the rights of ownership or of the common
privileged but deserving city inhabitants. The and necessary use and enjoyment of the property in a
spouses then filed a petition for certiorari and lawful manner, lessening or destroying its value.
prohibition in the RTC, praying for the annulment of (NAPOCOR v. Hrs. of Macabangkit Sangkay, G.R. No. 165828,
the Resolution due to its being unconstitutional, Aug. 24, 2011)
confiscatory, improper, and without force and effect. ---
The City countered that the Resolution was a mere ---
authorization; hence, the suit of the spouses was Q: Petitioner Himlayang Pilipino filed a petition to
premature. Will the petition for certiorari and annul an ordinance which provides that at least 6%
prohibition prosper? of the total area of every private cemetery shall be
set aside for charity burial grounds of deceased
A: NO. Certiorari did not lie against the Sangguniang paupers. Petitioner alleged that the ordinance is an
Panglungsod, which was not a part of the Judiciary invalid exercise of the power of eminent domain as
settling an actual controversy involving legally they were not paid just compensation. The City
demandable and enforceable rights when it adopted government of Quezon City, however, argued that the
Resolution No. 552, but a legislative and policy-making ordinance is an exercise of police power, hence, just
body declaring its sentiment or opinion. Furthermore, compensaition is not necessary. Is the ordinance
the remedy of prohibition was not called for, considering valid?
that only a resolution expressing the desire of the
Sangguniang Panglungsod to expropriate the petitioners’ A: NO. The power to regulate does not include the power
property was issued. It was premature for the to prohibit. A fortiori, the power to regulate does not
petitioners to mount any judicial challenge, for the include the power to confiscate. The ordinance in
power of eminent domain could be exercised by the City question not only confiscates but also prohibits the
only through the filing of a verified complaint in the operation of a memorial park cemetery. There is no
proper court. Before the City as the expropriating reasonable relation between the setting aside of at least
authority filed such verified complaint, no expropriation 6% of the total area of a private cemeteries for charity
proceeding could be said to exist. Until then, the burial grounds of deceased paupers and the promotion
petitioners as the owners could not also be deprived of of health, morals, good order, safety, or the general
their property under the power of eminent domain. welfare of the people.
(Spouses Antonio And Fe V. Court Of Appeals, City Mayor
And City Council Of Mandaluyong City, G.R. No. 156684, 6 Section 9 of the assailed Ordinance is not a mere police
April 2011) regulation but an outright confiscation. It is not an
--- exercise of police power but eminent domain. It deprives
--- a person of his private property without due process of
Q: NAPOCOR undertook the Agus River Hydroelectric law and without payment of just compensation. Instead
Power Plant Project to generate electricity for of building or maintaining a public cemetery for this
Mindanao. The project included the construction of purpose, the city passes the burden to private
several underground tunnels to be used in diverting cemeteries. Police power does not involve the taking or
the water flow from the Agus River to the confiscation of property with the exception of few cases
hydroelectric plants. Merry, Pippin and Sam belatedly where there is a necessity to confiscate private property
discovered that one of the underground tunnels of in order to destroy it for the purpose of protecting the
NAPOCOR traversed their land. The said underground peace and order and of promoting the general welfare.
tunnel had been constructed without their knowledge (Quezon City v. Ericta, G.R. No. L-34915, June 24, 1983)
and consent. ---
---
Merry, Pippin and Sam now seek for recovery of the Q: The municipal council of Baao, Camarines Sur,
property and damages because according to them, the passed an ordinance providing that any person who
presence of the tunnel deprived them of the will construct or repair a building should before
agricultural, commercial, industrial, and residential doing such, obtain a written permit from the
value of their land. Moreover, according to Merry, Municipal Mayor and if said building destroys the
Pippin and Sam their land had also become an unsafe view of the Public Plaza or occupies any public
place for habitation because of the loud sound of the property, it shall be removed at the expense of the
water rushing through the tunnel and the constant owner of the building or house. X filed a written
shaking of the ground. request for a permit to construct a building on a
parcel of land adjacent to their gasoline station. The
Does the construction of the tunnel constitute taking request was denied because the proposed building
of land which entitles Merry, Pippin and Sam to just would destroy the view or beauty of the public plaza.
compensation? X proceeded with the construction of the building
without a permit because his former house was
A: YES. There was full taking on the part of NAPOCOR, destroyed by a typhoon. X was charged and
notwithstanding that the owners were not completely and convicted of violating the Ordinance for having
actually dispossessed. Taking of private property for constructed a building that destroys the view of the
public use, to be compensable, need not be an actual public plaza without a mayor’s permit. Is the
physical taking or appropriation. Compensable taking ordinance valid?

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domain when there is no law or ordinance requiring
A: NO. The ordinance is unreasonable and oppressive, in private land owners to conform to the proposed
that it operates to permanently deprive appellants of the widening of the street approved by the Urban
right to use their own property; hence, it oversteps the Commission. Where the City has not expropriated the
bounds of police power, and amounts to a taking of strip of land affected by the proposed widening of the
appellants’ property without just compensation. But street, inasmuch as there is no legislative authority to
while property may be regulated in the interest of the establish a building line, the denial of this permit would
general welfare and, in its pursuit, the State may prohibit amount to taking of private property for public use
structures offensive to sight, the State may not, under the under the power of eminent domain without following
guise of police power, permanently divest owners of the the procedure prescribed for the exercise of such power.
beneficial use of their property and practically confiscate The city engineer required to issue the building permit
them solely to preserve or assure the aesthetic upon payment of the fees. (Hipolito v. City of Manila, G.R
appearance of the community. To legally achieve that No. L-3887, Aug. 21, 1950)
result, the municipality must give the owners just ---
compensation and an opportunity to be heard. The
Ordinance was beyond the authority of said municipality TAXING POWER
to enact, and is therefore null and void. (People v.
Fajardo, G.R No. L-12172, Aug. 29, 1958) Nature of the power of taxation of LGUs
---
--- The power to tax is primarily vested in the Congress;
Q: The Philippine Tourism Authority sought the however, in our jurisdiction, it may be exercised by local
expropriation of 282 hectares of rolling land situated legislative bodies, no longer merely by virtue of a valid
in Barangay Alubog and Babag, Cebu City, under an delegation as before, but pursuant to direct authority
express authority to acquire by purchase or by any conferred by Section 5, Article V of the 1987
other means any private land within the tourism Constitution. The exercise of the power may be subject to
zone. Petitioner contended that the taking was not such guidelines and limitations as the Congress may
for public use and that there is no specific provide which, however, must be consistent with the
constitutional provision authorizing the taking of basic policy of local autonomy. (MIAA v. Marcos, G.R. No.
private property for tourism purposes. Is the 120082, Sept. 11, 1996)
contention valid?
NOTE: While the power to tax is inherent in the State,
A: NO. Expropriation by the PTA under PD 564 of land the same is not true for LGUs because although the
owned by the local government for promotion of tourism mandate to impose taxes granted to LGUs is categorical
is a valid exercise of the State’s power of eminent and long established in the 1987 Philippine Constitution,
domain. The concept of public use is not limited to the same is not all encompassing as it is subject to
traditional purposes. Here, as elsewhere, the idea that limitations as explicitly stated in Section 5, Article X of
“public use” is strictly limited to clear cases of “use by the 1987 Constitution. The LGUs’ power to tax is subject
the public” has been discarded. The State’s power of to the limitations set forth under Section 133 of the LGC.
eminent domain extends to the expropriation of land for (Batangas City v. Pilipinas Shell Petroleum Philippines,
tourism purposes although this specific objective is not G.R. No. 187631, July 8, 2015)
expressed in the Constitution. The policy objectives of
the framers can be expressed only in general terms such Rationale for local taxation
as social justice, local autonomy, conservation and
development of the national patrimony public interest, The power of taxation is an essential and inherent
and general welfare, among others. (Heirs of Ardona v. attribute of sovereignty. It is a power that is purely
Reyes, G.R. No. G.R No. L-60549, Oct. 26, 1983) legislative and which the central legislative body cannot
--- delegate to either executive or judicial department
--- without infringing upon the theory of separation of
Q: Sps. Hipolito are the registered owners of a parcel powers. The exception, however, lies in the case of
of land in Santa Ana, Manila. They applied for municipal corporations, to which said theory does not
permission to erect a strong-material residential apply. Legislative powers may be delegated to legislative
building on the lot. For more than forty days, the city governments in respect of matters of local concern. This
engineer took no action. Wherefore, Hipolito wrote is sanctioned by immemorial practice. By necessary
him a letter manifesting his readiness to pay the fee implication, legislative power to create political
and to comply with existing ordinances governing corporations for purposes of local self-government
the issuance of building permits. The engineer carries with it the power to confer on such local
declined to issue the permit as according to the government agencies the power to tax. (Pepsi-Cola
Urban Commission’s Adopted Plan for the Sta. Ana, Bottling Co. v. Municipality of Tanauan, G.R. No. L-31156,
the streets will be widened to the respective widths Feb. 27, 1976)
of 22-m. and 10 m and will affect the proposed
building. Was the engineer correct in not issuing the ARMM’s taxing power
permit?
The ARMM has the legislative power to create sources of
A: NO. The refusal of the city engineer to issue a building revenues within its territorial jurisdiction and subject to
permit to private landowners constitutes eminent

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 LOCAL GOVERNMENTS
the provisions of the 1987 Constitution and national laws. Constitution. The LGC specifies further that the release
[1987 Constitution, Art. X, Sec. 20(2)] shall be made directly to the LGU concerned within
five days after every quarter of the year and “shall not
Power to tax by ordinary LGUs vs. Power to tax by be subject to any lien or holdback that may be imposed
Autonomous Regions by the national government for whatever purpose.” As a
rule, the term "shall" is a word of command that must be
LGU’s Outside LGU’S Inside given a compulsory meaning. The provision is, therefore,
Basis Autonomous Autonomous imperative. (Pimentel Jr. v. Aguirre, G.R. No. 132988, July 19,
Regions Regions 2000)
---
Sec. 5, Art. X, 1987 Sec. 20(b), Art. X, ---
As to Taxing Constitution 1987 Constitution Q: In 1993, Cebu City imposed amusement taxes
Power under Sec. 140 of the LGC and passed “Revised
Omnibus Tax Ordinance of the City of Cebu.” Secs. 42
As to LGC of 1991 Respective and 43, Chapter XI of the city ordinance requires
governing Organic Act proprietors, lessees or operators of theatres, cinemas,
guidelines concert halls, circuses, boxing stadia, and other places
and of amusement, to pay an amusement tax equivalent to
limitations 30 percent of the gross receipts of admission fees.
Meanwhile, RA 9167 was enacted on June 7, 2002
creating the Film Development Council of the
NOTE: Unlike Sec. 5, Art. X, Sec. 20, Art. X of the 1987 Philippines (FDCP). Secs 13 and 14 of RA 9167
Constitution is not self-executing. It merely authorizes provided for the tax treatment of certain graded films
Congress to pass the Organic Act of the — film producers were to be entitled to an incentive
autonomous regions which shall provide for legislative equivalent to the amusement tax imposed and
powers to levy taxes upon their inhabitants. collected by the cities, subject to various rates
depending on the grade of their film, to be remitted to
Local Fiscal Autonomy the FDCP. FDCP had sent demand letters for unpaid
amusement tax reward with five percent surcharge
Fiscal autonomy means that local governments have the for each month of delinquency due to the producers.
power to create their own sources of revenue in addition The proprietors and cinema operators refused to
to their equitable share in the national taxes released by remit the amounts as FDCP demanded while Cebu City
the national government, as well as the power to allocate insisted on its claim on the amounts in question.
their resources in accordance with their own priorities. Then, Cebu City filed a petition for declaratory relief
It extends to the preparation of their budgets, and local before RTC, Branch 14, asking it to declare Secs. 13
officials in turn have to work within the constraints and 14 of RA 9167 invalid and unconstitutional. Colon
thereof. They are not formulated at the national level and Heritage Corporation filed a similar petition before
imposed on local governments, whether they are the RTC Branch 5, seeking to declare Sec. 14
relevant to local needs and resources or not. Further, a unconstitutional. The RTC declared Secs. 13 and 14 of
basic feature of local fiscal autonomy is the RA 9167 unconstitutional. The RTC said what RA 9167
constitutionally mandated automatic release of the seeks to accomplish is the segregation of amusement
shares of local governments in the national internal taxes raised and collected by Cebu City and its
revenue. (Province of Batangas v. Romulo, G.R. No. subsequent transfer to FDCP. This, it said, is a
152774, May 27, 2004) confiscatory measure where the national government
extracts money from the local government’s coffers
NOTE: A “no report, no release” policy may not be validly and transfers it to the FDCP, a private agency, which in
enforced against offices vested with fiscal autonomy turn, will award the money to private persons, film
such as Constitutional Commissions and local producers, for having produced graded films. Is the
governments. The automatic release provision found in RTC correct?
the Constitution means these local governments units
cannot be required to perform any act to receive the A: YES. Under RA 9167, covered LGUs still have the power
“just share” accruing to them from the national coffers. to levy amusement taxes, albeit at the end of the day,
(Civil Service Commission v. Department of Budget and they will derive no revenue therefrom. The same,
Management, G.R. No. 158791, July 22, 2005) however, cannot be said for FDCP and the producers of
graded films since the amounts thus levied by the LGUs
--- which should rightfully accrue to them, they being the
Q: The President, through AO 372, ordered the taxing authority-will be going to their coffers. As a matter
withholding of 10% of the LGUs' IRA "pending the of fact, it is only through the exercise by the LGU of said
assessment and evaluation by the Development power that the funds to be used for the amusement tax
Budget Coordinating Committee of the emerging reward can be raised. Without said imposition, the
fiscal situation" in the country. Is the AO valid? producers of graded films will receive nothing from the
owners, proprietors and lessees of cinemas operating
A: NO. A basic feature of local fiscal autonomy is the within the territory of the covered LGU.
automatic release of the shares of LGUs in the national
internal revenue. This is mandated by no less than the Taking the resulting scheme into consideration, it is

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apparent that what Congress did in this instance was not provided therein.
to exclude the authority to levy amusement taxes from the 5. Each local government unit shall, as far as
taxing power of the covered LGUs, but to earmark, if not practicable, evolve a progressive system of
altogether confiscate, the income to be received by the taxation. (LGC, Sec. 130)
LGU from the taxpayers in favor of and for transmittal to
FDCP, instead of the taxing authority. This is in clear Principles governing financial affairs, transactions
contravention of the constitutional command that taxes and operations of LGUs
levied by LGUs shall accrue exclusively to said LGU and is
repugnant to the power of LGUs to apportion their 1. No money shall be paid out of the local treasury
resources in line with their priorities. except in pursuance of an appropriation
ordinance or law;
It is a basic precept that the inherent legislative powers of 2. Local government funds and monies shall be spent
Congress, broad as they may be, are limited and confined solely for public purposes;
within the four walls of the Constitution. Accordingly, 3. Local revenue is generated only from sources
whenever the legislature exercises its power to enact, expressly authorized by law or ordinance, and
amend, and repeal laws, it should do so without going collection thereof shall at all times be
beyond the parameters wrought by the organic law. acknowledged properly;
4. All monies officially received by a local
In the case at bar, through the application and government officer in any capacity or on any
enforcement of Sec. 14 of RA 9167, the income from the occasion shall be accounted for as local funds,
amusement taxes levied by the covered LGUs did not and unless otherwise provided;
will under no circumstance accrue to them, not even 5. Trust funds in the local treasury shall not be paid out
partially, despite being the taxing authority therefor. except in the fulfillment of the purpose for which
Congress, therefore, clearly overstepped its plenary the trust was created or the funds received;
legislative power, the amendment being violative of the 6. Everyofficer of the LGU whose duties permit or
fundamental law's guarantee on local autonomy. (Film require the possession or custody of local funds
Development Council of the Philippines v. Colon Heritage shall be properly bonded, and such officer shall
Realty Corporation, G.R. No. 203754, June 16, 2015) be accountable and responsible for said
--- funds and for the safekeeping thereof in
conformity with the provisions of law;
Main sources of revenues of LGUs (1991, 1996, 1999, 7. Local governments shall formulate sound
2007 Bar) financial plans and local budgets shall be based on
functions, activities, and projects in terms of
1. Taxes, fees, and charges. (1987 Constitution Art. X, expected results;
Sec. 5) 8. Local budget plans and goals shall, as far as
practicable, be harmonized with national
2. Internal Revenue Allotment (IRA) - Just share in the development plans, goals and strategies in order to
national taxes which shall be automatically optimize the utilization of resources and to avoid
released to them. (1987 Constitution Art. X, Sec. 6) duplication in the use of fiscal and physical
resources.
NOTE: The current sharing is 40% local and 60% 9. Local budgets shall operationalize approved local
national. The share cannot be reduced except if development plans;
there is unmanageable public sector deficit. 10. LGUs shall ensure that their respective budgets
incorporate the requirements of their component
3. Equitable share in the proceeds of the utilization units and provide for equitable allocation of
and development of the national wealth within resources among these component units;
their areas. (1987 Constitution Art. X, Sec. 7) 11. National planning shall be based on local
planning to ensure that the needs and
Principles governing exercise of taxing and aspirations of the people as articulated by the
revenue-sharing powers of LGUs LGUs in their respective local development plans
are considered in the formulation of budgets of
1. Taxation shall be uniform in each LGU national line agencies or offices;
2. Taxes, fees, charges and other impositions shall 12. Fiscal responsibility shall be shared by all those
be equitable and based as far as practicable on the exercising authority over the financial affairs,
taxpayer’s ability to pay; it shall be levied and transactions and operations of LGUs; and
collected only for public purpose; it must not be 13. The LGU shall endeavor to have a balanced budget in
unjust, excessive, oppressive, or confiscatory; it each fiscal year of operation. (LGC, Sec. 305)
must not be contrary to law, public policy,
national economic policy, or restraint of trade; Requirements for a valid tax ordinance (PUJ-NO)
3. The collection of local taxes, fees, charges and
other impositions shall in no case be let to any 1. The tax is for a public purpose;
private person. 2. The rule on uniformity of taxation is observed;
4. The revenue collected shall inure solely to the 3. Either the person or property taxed is within the
benefit of, and be subject to disposition by, the jurisdiction of the government levying the tax; and
local government unit, unless specifically 4. In the assessment and collection of certain kinds of

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 LOCAL GOVERNMENTS
taxes, notice and opportunity for hearing are questions on the legality and constitutionality of
provided. (Pepsi-Cola Bottling Co. v. Municipality of ordinances or revenue measures.
Tanauan, G.R. No. L-31156, February 27, 1976)
Such questions shall be raised on appeal within thirty
Procedural requirements for a valid revenue days from the effectivity thereof to the Secretary of
ordinance Justice who shall render a decision within sixty days from
the date of receipt of the appeal.
1. A prior public hearing on the measure to be
conducted according to the prescribed rules. NOTE: Such appeal shall not have the effect of
suspending the effectivity of the ordinance and the
NOTE: An ordinance levying taxes, fees or charges accrual and payment of the tax, fee, or charge levied
shall not be enacted without any prior public therein: Provided, finally, that within thirty days after
hearing conducted for the purpose. (Figuerres v. receipt of the decision or the lapse of the sixty-day
CA, G.R. No. 119172, March 25, 1999) period without the Secretary of Justice acting upon
the appeal, the aggrieved party may file
2. Publication of the tax ordinance, within 10 days appropriate proceedings with a court of competent
after their approval, for 3 consecutive days in a jurisdiction (RTC). (LGC, Sec. 187)
newspaper of local circulation, provided that in
provinces, cities, and municipalities where there are Tax Protest
no newspapers of local circulation, the same may be
posted in at least two (2) conspicuous and The formal statement, usually in writing, made by a
publicly accessible places. person who is called upon by public authority to pay a
sum of money, in which he declares that he does not
NOTE: If the tax ordinance or revenue measure concede the legality or justice of the claim or his duty to
contains penal provisions as authorized in Art. 280 pay it, or that he disputes the amount demanded; the
of this Rule, the gist of such tax ordinance or object being to save his right to recover or reclaim the
revenue measure shall be published in a newspaper amount, which right would be lost by his acquiescence.
of general circulation within the province where the Thus, taxes may be paid under "protest". (Black’s Law
sanggunian concerned belongs. (IRR of LGC, Art. 276) Dictionary)

Effectivity of tax ordinance Requisites of a valid tax protest in a LGU (PAP)

In case the effectivity of any tax ordinance or 1. Taxpayer first pays the taxes
revenue measure falls on any date other than the 2. There shall be annotation on the tax receipts the
beginning of the quarter, the same shall be words "paid under protest".
considered as falling at the beginning of the next 3. The protest in writing must be filed within thirty
ensuing quarter and the taxes, fees, or charges due (30) days from payment of the tax to the provincial,
shall begin to accrue therefrom. (IRR of LGC, Art. 276) city treasurer or municipal treasurer, in the case of
a municipality within Metropolitan Manila Area,
--- who shall decide the protest within sixty (60) days
Q: The Province of Palawan passes an ordinance from receipt. (LGC, Sec. 252)
requiring all owners/operators of fishing vessels that
fish in waters surrounding the province to invest ten NOTE: A claim for tax exemption, whether full or partial,
percent (10%) of their net profits from operations does not deal with the authority of local assessor to assess
therein in any enterprise located in Palawan. NARCO real property tax, but merely raises a question of
Fishing Corp., a Filipino corporation with head office reasonableness of correctness of such assessment, which
in Navotas, Metro Manila, challenges the ordinance requires compliance with Sec. 252 of the LGC. (Camp John
as unconstitutional. Decide. Hay Development Corporation v. Central Board of
Assessment Appeals, G.R. No. 169234, October 2, 2013)
A: The ordinance is invalid. The ordinance was
apparently enacted pursuant to Art. X, Sec. 7 of the Remedies available to the LGUs to enforce the
Constitution, which entitles local governments to an payment of taxes
equitable share in the proceeds of the utilization and
development of the national wealth within their 1. Imposing penalties (surcharges and penalty interest)
respective areas. However, this should be made in case of delinquency (LGC, Sec. 168)
pursuant to law. A law is needed to implement this 2. Availing local government’s liens (LGC, Sec. 173)
provision and a local government cannot constitute 3. Administrative action through distraint of goods,
itself unto a law. In the absence of a law, the ordinance chattels, and other personal property [LGC, Sec.
in question is invalid. 174(a)]
--- 4. Judicial action [LGC, Sec. 174(b)]

Authority to determine the legality or propriety Community tax

of a local tax ordinance or revenue measure
Community tax is a poll or capitation tax which is
It is the Secretary of Justice who shall determine imposed upon person who resides within a specified

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239 FACULTY OF CIVIL LAW
 POLITICAL LAW
territory. Management. (Pimentel, Jr. v. Aguirre, G.R. No.
132988, July 19, 2000)
Exempted from the payment of community tax
CLOSING AND OPENING OF ROADS
1. Diplomatic and consular representatives;
2. Transient visitors when their stay in the LGU’s power to open or close a road
Philippines does not exceed 3 months. (LGC, Sec.
159) LGU may, pursuant to an ordinance, permanently or
temporarily close or open any local road, alley, park, or
Real property taxes square falling within its jurisdiction; Provided, however,
that in case of permanent closure, such ordinance must
These are directly imposed on privilege to use real be approved by at least two-thirds (2/3) of all the
property such as land, building, machinery, and other members of the sanggunian, and when necessary, an
improvements, unless specifically exempted. adequate substitute for the public facility that is subject
to closure is provided. [LGC, Sec. 21(a)]
---
Q: Bayantel was granted by Congress, after the NOTE: No permanent closure of any local road, street,
effectivity of LGC, a legislative franchise with tax alley, park, or square shall be effected unless there
exemption privileges which partly reads: “the exists a compelling reason or sufficient justification
grantee, its successors or assigns shall be liable to therefor such as, but not limited to, change in land use,
pay the same taxes on their real estate, buildings establishment of infrastructure facilities, projects, or
and personal property, exclusive of this such other justifiable reasons as public welfare may
franchise, as other persons or corporations are require. [IRR of LGC, Art. 44(a)]
now or hereafter may be required by law to pay.”
This provision existed in the company’s franchise Limitations of permanent and temporary closure
prior to the effectivity of the LGC. Quezon City
then enacted an ordinance imposing a real A. In case of permanent closure:
property tax on all real properties located within 1. It must be approved by at least 2/3 of all the
the city limits and withdrawing all exemptions members of the Sanggunian and when
previously granted. Among properties covered are necessary provide for an adequate
those owned by the company. Bayantel asserts that its substitute for the public facility
properties are exempt from tax under its franchise. Is 2. Adequate provision for the public safety
Bayantel correct? must be made
3. The property may be used or conveyed for
A: YES. The properties are exempt from taxation. The any purpose for which other real property
grant of taxing powers to local governments under the may be lawfully used or conveyed. [LGC, Sec.
Constitution and the LGC does not affect the power of 21(a)(b)]
Congress to grant tax exemptions.
NOTE: No freedom park shall be
The term "exclusive of the franchise" is interpreted to closed permanently without provision for
mean properties actually, directly and exclusively used in its transfer or relocation to a new site. [LGC,
the radio and telecommunications business. The Sec. 21(a)(b)]
subsequent piece of legislation which reiterated the
phrase “exclusive of this franchise” found in the
previous tax exemption grant to the company is an B. In case of temporary closure:
express and real intention on the part of the Congress 1. It must be for actual emergency, fiesta
to once again remove from the LGC’s delegated celebration, public rallies, agricultural or
taxing power, all of the company’s properties that are industrial fairs, or an undertaking of public
actually, directly and exclusively used in the pursuit of its works and highways, telecommunications
franchise. (The City Government of Quezon City, et al., v. and water work projects
Bayan Telecommunications, Inc., G.R. No. 162015, March 2. Duration of which shall be specified
6, 2006) 3. Except for those activities not officially
--- sponsored or approved by the LGU
concerned. [LGC, Sec. 21(c)]
Elements so that the President may interfere in local
fiscal matters NOTE: Any city, municipality or barangay may, by
ordinance, temporarily close and regulate the use of a
1. An unmanaged public sector deficit of the local street, road, thoroughfare or any other public
national government; place where shopping malls, Sunday, flea or night
2. Consultations with the presiding officers of the markets, or shopping areas may be established and where
Senate and the House of Representatives and the articles of commerce may be sold or dispensed with to
presidents of the various local leagues; the general public. [LGC, Sec. 21(d)]
3. And the corresponding recommendation of the
secretaries of the Department of Finance, Material factors to consider in closing a street
Interior and Local Government, and Budget and

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 LOCAL GOVERNMENTS
The material factors which a municipality must ---
consider in deliberating upon the advisability of
closing a street are: LEGISLATIVE POWER
1. The topography of the property
surrounding the street in the light of ingress and Nature of local legislative powers
egress to other streets;
2. the relationship of the street in the road system It is a fundamental principle that municipal
throughout the subdivision; ordinances are inferior in status and subordinate to
3. the problem posed by the 'dead end' of the street; the laws of the State. An ordinance in conflict with a
the width of the street; state law of general character and statewide
4. the cost of rebuilding and maintaining the street application is universally held to be invalid. The
as contrasted to its ultimate value to all of the principle is frequently expressed in the declaration
property in the vicinity; that municipal authorities, under a general grant of
5. the inconvenience of those visiting the subdivision; power, cannot adopt ordinances which infringe upon
and the spirit of a state law or repugnant to the general
6. Whether the closing of the street would cut off any policy of the state. In every power to pass ordinances
property owners from access to a street. (Favis v. given to a municipality, there is an implied restriction
City of Baguio, G.R. No. L-29910, April 25, 1969) that the ordinances shall be consistent with the
general law (Batangas CATV v. Court of Appeals, G.R.
--- No. 138810, September 29, 2004).
Q: The Sangguniang Barangay of BSV passed a
Resolution which directed the NSV Homeowners NOTE: The rule against undue delegation of legislative
Association to open Marshmallow and Chocolate powers applies to LGUs. In the case of Villegas v. Tsai
Streets to vehicular and pedestrian traffic. The NSV Pao Ho (G.R. No. 29646, October 10, 1978), a city
Homeowners Association, Inc. (NSVHAI), filed a ordinance was declared void because it constituted
petition claiming that the implementation of the undue delegation of legislative power to the Mayor.
resolution would cause grave injustice and irreparable The ordinance did not lay down any standard to guide
injury as the affected homeowners acquired their the Mayor in the exercise of his discretion in the
properties for strictly residential purposes, and that issuance or denial of an alien employment permit.
the subdivision is a place that the homeowners
envisioned would provide them privacy and a peaceful The Sanggunian
neighborhood, free from the hassles of public places;
and that the passage of the Resolution would destroy A sanggunian is a collegial body. Legislation, which is
the character of the subdivision. NSVHAI averred that the principal function of the sanggunian, requires the
the opening of the gates of the subdivision would not participation of all its members so that they may not
ease the traffic congestion in the area, and that there only represent the interests of their respective
were alternative routes available. NSVHAI argued that constituents but also help in the making of decisions,
the Sangguniang Barangay has no jurisdiction over the by voting upon every question put upon the body
roads and they likewise argued that a Barangay (Zamora v. Caballero, G.R. No. 147767, January 14,
Resolution cannot validly cause the opening of the 2004).
subject roads because under the law, an ordinance is
required to effect such an act. Should the Sangguniang NOTE: A petition for certiorari filed against a
Barangay pass an ordinance instead of a resolution to Sangguniang Panlungsod assailing the legality of an
open the subject roads? ordinance will not lie since the Sanggunian is not a
tribunal, board or officer exercising judicial or quasi-
A: NO. LGU's have the power to close and open roads judicial functions (Liga ng mga Barangay National v.
within its jurisdiction as provided for in Sec. 21 of the LGC. City Mayor of Manila, G.R. No. 154599, January 21,
This provision, which requires the passage of an ordinance 2004).
by an LGU to effect the opening of a local road, can have no
applicability to the instant case since the subdivision road No power to subpoena and hold persons in
lots sought to be opened to decongest traffic in the area contempt (1993 Bar)
have already been donated by the Subdivision to, and the
titles already issued in the name of, the City Government of The contempt power and the subpoena power cannot
Parañaque. Having been already donated or turned over to be deemed implied in the delegation of certain
Parañaque, the road lots in question have since then taken legislative functions to local legislative bodies. These
the nature of public roads which are withdrawn from the cannot be presumed to exist in favor of the latter and
commerce of man, and hence placed beyond the private must be considered an exception to Sec. 4 of BP Blg.
rights or claims of NSVHAI. Consequently, BSV 337 which provides for liberal rules of interpretation
Sangguniang Barangay's act of passing the Resolution had in favor of local autonomy. Since the existence of these
for its purpose not the opening of a private road but merely powers poses a potential derogation of individual
a directive or reminder to the NSVHAI to cause the opening rights, the law cannot be liberally construed to have
of a public road which should rightfully be open for use to impliedly granted such powers to local legislative
the general public. (New Sun Valley Homeowners’ bodies. The intention of the people, through their
Association Inc. v. Sangguniang Barangay, Barangay Sun representatives, to share these powers with the local
Valley, Parañaque City, G.R. No. 156686, July 27, 2011) legislative bodies must clearly appear in pertinent

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legislation. (Negros Oriental II Electric Cooperative Inc., Quorum in the sanggunian
v. Sangguiang Panlungsod ng Dumaguete, G.R. No. L-
72492, November 5, 1987) Quorum is defined as the number of members of a body
which when legally assembled in their proper places,
will enable the body to transact its proper business or
Local legislative bodies and their presiding officers that number which makes a lawful body and gives it
power to pass upon a law, ordinance or any valid act.
Sangguniang Vice-governor ‘Majority’, when required to constitute a quorum, means
Province
Panlalawigan the number greater than half or more than half of any
total.
City Sangguniang City Vice-
Panlungsod mayor The applicable rule on quorum of local legislative bodies
is found in Section 53(a) of the LGC which provides that
Sangguniang Municipal
Municipality a majority of all members of the sanggunian who have
bayan Vice-mayor
been elected and qualified shall constitute a quorum to
Sangguniang Punong transact official business. The entire membership must
Barangay be taken into account in computing the quorum.
barangay Barangay
(Zamora v. Caballero, G.R. No. 147767, January 14, 2004)
NOTE: The presiding officer shall vote only to break a tie.
(Sec. 49(a) LGC) NOTE: The determination of the existence of quorum is
based on the total number of members of the
In the absence of the regular presiding officer or his sanggunian without regard to filing of a leave of
inability to preside at the sanggunian session, the absence. (Zamora v. Caballero, ibid.)
members present and constituting a quorum shall elect
from among themselves a temporary presiding officer. Procedures to be taken by the presiding officer if
(LGC, Sec. 49(b); Gamboa v. Aguirre, G.R. No. 134213, July 20, there is a question on quorum
1999)
Should there be a question of quorum raised during a
session, the presiding officer shall:
1. Immediately proceed to call the roll of the members
--- and
Q. May an incumbent Vice-Governor, acting as 2. Announce the results. [LGC, Sec. 53 (a)]
governor, continue to preside over the sessions of the
Sangguniang Panlalawigan? If not, who may preside Procedures to be taken by the presiding officer if
in the meantime? there is no quorum

A: NO. A Vice-Governor who is concurrently an acting The presiding officer may:

governor is actually a quasi-governor. For purposes of 1. Declare a recess until such time that quorum is
exercising his legislative prerogatives and powers, he is constituted
deemed a non-member of the SP for the time being. 2. Compel immediate attendance of the members
Being the Acting Governor, the Vice-Governor cannot who are absent without justifiable cause
continue to simultaneously exercise the duties of the 3. Declare the session adjourned for lack of quorum
latter office, since the nature of the duties of the and no business shall be transacted if there is still no
provincial Governor call for a full-time occupant to quorum despite enforcement of attendance. [LGC,
discharge them. Such is not only consistent with but also Sec. 53 (b)(c)]
appears to be the clear rationale of the new Code
wherein the policy of performing dual functions in both Fixing of Sessions
offices has already been abandoned.
Regular Sessions Special Sessions
The creation of a temporary vacancy in the office of the By resolution on the 1st day
of the session immediately When public interest so
Governor creates a corresponding temporary vacancy in
following the election of its demands, special session
the office of the Vice-Governor whenever the latter acts
members may be called for by the
as Governor by virtue of such temporary vacancy. The
chief executive or by a
continuity of the Acting Governor’s (Vice-Governor)
majority vote members of
powers as presiding officer of the SP is suspended so
sanggunian.
long as he is in such capacity.
NOTE: The minimum number of regular sessions shall be
Under Sec. 49(b), “(i)n the event of the inability of the
once a week for the sangguniang panlalawigan,
regular presiding officer to preside at the sanggunian
sangguniang panlungsod, and sangguniang bayan, and
session, the members present and constituting a quorum
twice a month for the sangguniang barangay. [LGC, Sec. 52
shall elect from among themselves a temporary
(a)]
presiding officer.” (Gamboa v. Aguirre, G.R. No. 134213,
July 20, 1999)
Guidelines in the conduct of a sanggunian session
---
1. It shall be open to public, unless it is a closed-

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 LOCAL GOVERNMENTS
door session lawmaking body on
2. No two sessions, regular or special, may be held in a a specific matter
single day General and permanent Temporary in nature
3. Minutes of the session be recorded and each character
sanggunian shall keep a journal and record of its Third reading is GR: Third reading is not
proceedings which may be published upon necessary for an necessary in resolution
resolution of the sanggunian concerned. ordinance
4. In case of special sessions: XPN: Unless
a. Written notice to the members must be served decidedotherwise by a
personally at least 24 hours before the special majority of all the
session is held Sanggunian members.
b. Unless otherwise concurred in by 2/3 votes of (Roble Arrastre, Inc. v.
the sanggunian members present, there Villaflor, G.R. No. 128509,
being no quorum, no other matters may be August 22, 2006)
considered at a special session except those
stated in the notice. (LGC, Sec. 52) NOTE: It has been held that even where the statute or
municipal charter requires the municipality to act by an
--- ordinance, if a resolution is passed in the manner and
Q: On its first regular session, may the sanggunian with the statutory formality required in the enactment
transact business other than the matter of adopting of an ordinance, it will be binding and effective as an
or updating its existing rules or procedure? ordinance. Such resolution may operate regardless of
the name by which it is called. (Favis v. City of Baguio,
A: YES. There is nothing in the language of the LGC G.R. No. L-29910, April 25, 1969)
that restricts the matters to be taken up during the
first regular session merely to the adoption or Three readings allowed in one day
updating of the house rules. (Malonzo v. Zamora, G.R. No.
137718, July 27, 1999) There is nothing in the LGC which prohibits the three
--- readings of a proposed ordinance from being held in just
one session day. It is not the function of the courts to
Ordinance speculate that the councilors were not given ample time
for reflection and circumspection before the passage of
As a municipal statute, it is a rule of conduct or of action, the proposed ordinance by conducting three readings in
laid down by the municipal authorities that must be just one day. (Malonzo v. Zamora, G.R. No. 137718, July
obeyed by the citizens. It is drafted, prepared, 27, 1999)
promulgated by such authorities for the information of all
concerned, under and by virtue of powers conferred upon Veto of the Local Chief Executive (1996, 2005 Bar)
them by law. (United States v. Pablo Trinidad, G.R. No. L-
3023, January 16, 1907) The Local Chief Executive may veto the ordinance only
once on the ground that the ordinance is ultra vires and
REQUISITES OF A VALID ORDINANCE prejudicial to public welfare. The veto must be
communicated to the sanggunian within:
1. Must not contravene the constitution and any a. 15 days for a province
statute b. 10 days for a city or municipality (LGC, Secs. 54
2. Must not be unfair or oppressive and 55)
3. Must not be partial or discriminatory
4. Must not prohibit, but may regulate trade NOTE: While “to veto or not to veto involves the
5. Must not be unreasonable exercise of discretion,” a mayor exceeded his/her
6. Must be general in application and Consistent authority in an arbitrary manner when he/she vetoes a
with public policy [not-CUPPUn-Gen]. (Magtajas v. resolution where there exist sufficient municipal funds
Pryce Properties Corporation, Inc., July 20, 1994) from which the salary of the officer could be paid. The
Mayor’s refusal in complying with the directive of the
NOTE: The mere fact that there is already a general Director of the Bureau of Local Government that the
statute covering an act or omission is insufficient to salary could be provided for is oppressive. (Pilar v.
negate the legislative intent to empower the Sangguniang Bayan of Dasol, Pangasinan, G.R. No. L-
municipality to enact ordinances with reference to the 63216, March 12, 1984)
same act or omission under the ‘general welfare clause’
of the Municipal Charter. (United States v. Pascual Pacis, Items that the local chief executive can veto
G.R. No. 10363, September 29, 1915)
1. Item/s of an appropriation ordinance.
Ordinance vs. Resolution 2. Ordinance/resolution adopting local development
plan and public investment program
Ordinance Resolution 3. Ordinance directing the payment of money or
Law Merely a declaration creating liability. (LGC, Sec. 55)
of the sentiment or
opinion of a NOTE: Ordinances enacted by the sangguniang

UNIVERSITY OF SANTO TOMAS

243 FACULTY OF CIVIL LAW
 POLITICAL LAW
barangay shall, upon approval by a majority of all its to examine after the receipt.
members be signed by the punong barangay. The 1. Examine, or
latter has no veto power. 2. Transmit to the
provincial attorney
Approval of ordinances or provincial
prosecutor.
1. By affixing the signature of the local chief executive If it is transmitted,
on each and every page thereof if he approves the the provincial
same attorney or
2. By overriding the veto of the local chief prosecutor must
executive by 2/3 vote of all members of the submit his
sanggunian if the local chief executive vetoed the comments or
same. (LGC, Sec. 54) recommendations
within 10 days from
receipt of the
NOTE: A sanggunian may provide for a vote requirement document.
different (not majority vote) from that prescribed in the If no action has If no action has
LGC for certain (but not all) ordinances as in amending a As to When
been taken within been taken
zoning ordinance. (Casino v. Court of Appeals, G.R. No. declared
30 days after within 30 days
91192, Dec. 2, 1991) valid
submission. after submission.

Effectivity of ordinance or resolution If it is beyond the If inconsistent

power conferred on with the law or
GR: After 10 days from the date a copy is posted in a sangguniang city or municipal
the
bulletin board at the entrance of the capitol or city, ordinance.
panlungsod or
municipal or barangay hall and in at least 2 conspicuous As to When sangguniang
spaces. [LGC, Sec. 59 (a)] declared Effect: Barangay
pangbayan. (LGC,
invalid Sec. 56) ordinance is
XPN: Unless otherwise stated in the ordinance or (grounds) suspended until
resolution. [LGC, Sec. 59 (a)] such time as the
revision called is
Effect of the enforcement of a disapproved ordinance effected. (LGC,
or resolution Sec. 57)

It shall be a sufficient ground for the suspension or

dismissal of the official or employee. (LGC, Sec. 58)
LOCAL INITIATIVE AND REFERENDUM
Ordinances requiring publication for its effectivity
Local initiative vs. Referendum (2005 Bar)
1. Ordinances that carry with them penal sanctions.
[LGC, Sec. 59 (c)] Initiative Referendum
2. Ordinances and resolutions passed by highly The legal process whereby The legal process whereby
urbanized and independent component cities. [LGC, the registered voters of the registered voters of the
Sec. 59 (d)] LGU may directly propose, LGU may approve, amend
enact or amend any or reject any ordinance
Review of ordinances or resolutions (2009 Bar) ordinance. (LGC, Sec. 120) enacted by the sanggunian.
(RA. 7160, Sec. 126)
Component Cities
Basis and Municipal Barangay
Ordinances or Ordinances NOTE: Local initiative includes not only ordinances but
Resolutions also resolutions as its appropriate subjects. (Garcia v.
Sangguniang Sangguniang COMELEC, G.R. 111230, Sept. 30, 1994)
As to Who Panlalawigan Panlungsod or
Reviews Sangguniang Limitations on local initiative
Bayan
1. It shall not be exercised for more than once a
As to When Within 3 days after Within 10 days year.
copies of approval after its 2. It shall extend only to subjects or matters which are
ordinance or enactment within the legal powers of the sanggunian to enact.
resolutions 3. If at any time before the initiative is held, the
be sanggunian concerned adopts in toto the
forwarded proposition presented and the local chief executive
approves the same, the initiative shall be canceled.
Within 30 days after Within 30 days However, those against such action may, if they so
As to Period
the receipt; desire, apply for initiative in the manner herein

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 LOCAL GOVERNMENTS
provided. (LGC, Sec. 124)
1. To have continuous succession in its corporate
Procedure in conducting local initiative name
2. To sue and be sued
1. Number of voters who should file petition with 3. To have and use a corporate seal
the Sanggunian concerned:
a. Province and cities – not less than 1000 NOTE: Any new corporate seal or changes on such
registered voters shall be registered with the DILG.
b. Municipality – at least 100 registered voters
c. Barangay – at least 50 registered voters 4. To a acquire and convey real or personal property
5. To enter into contracts
2. The sanggunian concerned has 30 days to act on the
petition. If the sanggunian does not take any NOTE: Unless otherwise provided in this Code, no
favorable action, the proponents may invoke the contract may be entered into by the local chief
powers of initiative, giving notice to sanggunian. executive in behalf of the LGU without prior
3. Proponents will have the following number of authorization by the sanggunian concerned. A
days to collect required number of signatures legible copy of such contract shall be posted at a
a. Provinces and cities – 90 days conspicuous place in the provincial capitol or the
b. Municipalities – 60 days city, municipal or barangay hall.
c. Barangay – 30 days
6. To exercise such other powers as granted to
4. Signing of petition in a public place, before the corporations. (LGC, Sec. 22)
election registrar or his designated representatives,
in the presence of a representative of the proponent TO SUE AND BE SUED
and of the sanggunian concerned.
5. Date of initiative is set by COMELEC if the required Proper officer to represent the city in court actions
number of signatures has been obtained. (LGC, Sec.
122) GR: The city legal officer is supposed to represent the
city in all civil actions and special proceedings
Effectivity of proposition wherein the city or any of its officials is a party.

If the proposition is approved by a majority of the votes NOTE: Only the Provincial Fiscal or the Municipal
Attorney can represent a province or municipality in
cast, it will take effect 15 days after certification by the lawsuits. This is mandatory. Hence, a private attorney
COMELEC. (LGC, Sec. 123) cannot represent a province or municipality.

Rule of COMELEC over local referendum XPN: Where the position is as yet vacant, the City
Prosecutor remains the city’s legal adviser and officer for
The local referendum shall be held under the control civil cases. (ASEAN Pacific Planners v. City of Urdaneta,
and direction of the COMELEC within G.R. No. 162525, Sept. 23, 2008)
a. Provinces and cities – 60 days
b. Municipalities – 45 days NOTE: Suit is commenced by the local chief executive,
c. Barangay – 30 days upon authority of the Sanggunian, except when the City
Councilors, by themselves and as representatives of or on
The COMELEC shall certify and proclaim the results of the behalf of the City bring the action to prevent unlawful
said referendum. (LGC, Sec. 126) disbursement of City funds. (City Council of Cebu v.
Cuizon, G.R. No. L-28972, Oct. 31, 1972)
Rule on repeal, modification and amendment of an
ordinance or proposition approve through an initiative Power of LGU to sue on behalf of community it
and referendum represents

Any proposition or ordinance approved through an A municipality prejudiced by the action of another
initiative and referendum shall not be repealed, modified municipality is vested with the character of a juridical
or amended by the sanggunian within 6 months from the entity, is a corporation of public interest endowed with
date of approval thereof. the personality to acquire and hold property, contract
obligations, and bring civil and criminal actions in
It may be amended, modified or repealed within 3 years accordance with the laws governing its organization, and
thereafter by a vote of ¾ of all its members. (LGC, Sec. 125) it is entitled to file claims for the purpose of recovering
damages, losses and injuries caused to the community it
NOTE: In case of barangays, the period shall be 18 months represents. (Municipality of Mangaldan v. Municipality of
after the approval thereof. (LGC, Sec. 125) Manaoag, G.R. No. L-11627, Aug. 10, 1918)

CORPORATE POWERS ---

Q: Teotico was about to board a jeepney in P. Burgos,
Corporate powers of LGUs Manila when he fell into an uncovered manhole. This

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245 FACULTY OF CIVIL LAW
 POLITICAL LAW
caused injuries upon him. Thereafter he sued for Immunity from Suit
damages under Article 2189 of the Civil Code against
the City of Manila and its local officials. The City of A municipality, as an agency of the State engaged in
Manila assailed the decision of the CA on the ground governmental functions, is immune from suit (Jayme v.
that the charter of Manila states that it shall not be Apostol, G.R. No. 163609, November 27, 2008).
liable for damages caused by the negligence of the city
officers in enforcing the charter; that the charter is a GR: Municipalities are not liable for torts committed by
special law and shall prevail over the Civil Code which them in the discharge of governmental functions.
is a general law; and that the accident happened in
national highway. Is the City of Manila liable? XPN: They are liable only if it can be shown that they were
acting in a proprietary capacity.
A: YES. It is true that in case of conflict, a special law
prevails over a general law; that the charter of Manila is a NOTE: In permitting such entities to be sued, the State
special law and that the Civil Code is a general law. merely gives the claimant the right to show that the
However, looking at the particular provisions of each law defendant was not acting in its governmental capacity
concerned, the provision of the Manila Charter exempting when the injury was committed or that the case comes
it from liability caused by the negligence of its officers is a under the exceptions recognized by law. Failing this, the
general law in the sense that it exempts the city from claimant cannot recover. (Mun. of San Fernando, La Union
negligence of its officers in general. Art. 2189 of the NCC v. Firme, G.R. No. L-52179, April 8, 1991).
provides that provinces, cities, and municipalities liable
for the damages caused to a certain person by reason of TO ACQUIRE AND SELL PROPERTY
the “…defective condition of roads, streets, bridges, public
buildings, and other-public works under their control or Property held in trust by LGUs as agents of the
supervision.” State

Even though it is a national highway, the law contemplates Properties of municipalities not acquired by its own
that regardless of whether or not the road is national, funds in its private capacity are public property held
provincial, city, or municipal, so long as it is under the in trust for the State. Regardless of the source or
City’s control and supervision, it shall be responsible for classification of land in the possession of a
damages by reason of the defective conditions thereof municipality, except those acquired with its own
(City of Manila v. Teotico, G.R. No. L-23052, January 29, funds in its private or corporate capacity, such
1968). property is held in trust for the State for the benefit of
--- its inhabitants, whether it be for government or
--- proprietary purposes. It holds such lands subject to
Q: May LGU funds and properties be seized under the paramount power of the legislature to dispose of
writs of execution or garnishment to satisfy the same, for after all it owes its creation to it as an
judgments against them? agent for the performance of a part of it public work,
the municipality being but a subdivision or
A: NO. The universal rule that where the State gives its instrumentality thereof for the purposes of local
consent to be sued by private parties either by administration. (Salas v. Jarencio, G.R. No. L-29788,
general or special law, it may limit claimants action Aug. 30, 1972)
only up to the completion of proceedings anterior to the
stage of execution and that the power of the Courts Properties that can be alienated by LGUs
ends when the judgment is rendered. Government
funds and properties may not be seized under writs of Only properties owned in its private or proprietary
execution or garnishment to satisfy capacity. (Province of Zamboanga del Norte v. City of
such judgments. This is based on obvious considerations Zamboanga, G.R. No. L-24440, March 28, 1968)
of public policy. Disbursements of public funds must be
covered by the corresponding appropriations as Art. 424 of the Civil Code lays down the basic
required by law. The functions and public services principle that properties of public dominion devoted to
rendered by the State cannot be allowed to be public use and made available to the public, in
paralyzed or disrupted by the diversion of public funds general, are outside the commerce of man and cannot be
from their legitimate and specific objects (Traders disposed of or leased by the LGU to private persons.
Royal Bank v. IAC, G.R. No. 68514, Dec. 17, 1990). (Macasiano v. Diokno, G.R. No. 97764, Aug. 10, 1992)
---

NOTE: The rule on the immunity of public funds from Rules on LGU’s power to acquire and convey real or
seizure or garnishment does not apply when the funds personal property
sought to be levied under execution are already allocated
by law specifically for the satisfaction of the money 1. In the absence of proof that the property was
judgment against the government. In such a case, the acquired through corporate or private funds, the
monetary judgment may be legally enforced by judicial presumption is that it came from the State upon the
processes. (City of Caloocan v. Allarde, G.R. No. 107271, creation of the municipality and, thus, is
Sept. 10, 2003) governmental or public property. (Salas v.
Jarencio, G.R. No. L-29788, Aug. 30, 1972;

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 LOCAL GOVERNMENTS
Rabuco v. Villegas, G.R. No. L-24661, Feb. 28, 1974) concerned, unless otherwise provided. [LGC, Sec.
2. Town plazas are properties of public dominion; 22(c)]
they may be occupied temporarily, but only for the
duration of an emergency. (Espiritu v. Municipal 3. The contract must comply with certain
Council of Pozorrubio, Pangasinan, G.R. No. L-11014, substantive requirements:
January 21, 1958) a. Actual appropriation; and
3. Public plazas are beyond the commerce of man, b. Certificate of availability of funds
and cannot be the subject of lease or other
contractual undertaking. And, even assuming the 4. The contract must comply with the formal
existence of a valid lease of the public plaza or requirements of written contracts. (e.g. Statue of
part thereof, the municipal resolution effectively Frauds)
terminated the agreement, for it is settled that
the police power cannot be surrendered or NOTE: This includes the power to acquire and
bargained away through the medium of a convey properties by the LGU through written
contract. (Villanueva v. Castaneda, G.R. No. L- contracts.
61311, Sept. 21, 1987)
4. Public streets or thoroughfares are property for Void contracts of LGUs do not require judicial
public use, outside the commerce of man, and declaration of nullity
may not be the subject of lease or other
contracts. (Dacanay v. Asistio, G.R. No. 93654, May 6, Contracts entered into by a municipality, in violation of
1992) existing law, do not require judicial action declaring their
nullity. In the case of Bunye v. Sandiganbayan (G.R. No.
Documents to support the contract of sale entered 122058, May 5, 1999), the Supreme Court held that
into by the LGU contracts which grant a 25-year lease of the Public Market
when the law at that time BP Blg. 337, limits such leases to
1. Resolution of the sanggunian authorizing the local a maximum of five years, are void.
chief executive to enter into a contract of sale.
The resolution shall specify the terms and Conditions/Requisites under which a local chief
conditions to be embodied in the contract. executive may enter into a contract in behalf of his
2. Ordinance appropriating the amount specified in government unit
the contract.
3. Certification of the local treasurer as to 1. The contract must be within the power of the
availability of funds together with a statement municipality
that such fund shall not be disbursed or spent for any 2. The contract must be entered into by an
purpose other than to pay for the purchase of the authorized officer (e.g. mayor with proper
property involved. (Jesus is Lord Christian School resolution by the Sangguniang Bayan)
Foundation, Inc. v. Mun. of Pasig, G.R. No. 152230, 3. There must be appropriation and certificate of
Aug. 9, 2005) availability of funds
4. The contract must conform with the formal
Congress may transfer property to an LGU for public requisites of a written contract as prescribed by
or patrimonial purposes law; and
5. In some cases the contract must be approved by the
A city, being a public corporation, is not covered by the President and/or provincial governor. (Revised Adm.
constitutional ban on acquisition of alienable public lands. Code, Sec. 2068 and Sec. 2196)
Congress may, by law, transfer public lands to a city, an
end user government agency, to be used for municipal Contracts validly entered into by previous chief
purposes, which may be public or patrimonial. Lands thus executive bind successor-in-office
acquired by the city for a public purpose may not be sold
to private parties. However, lands so acquired by a city for When there is a perfected contract executed by the
a patrimonial purpose may be sold to private parties, former Governor, the succeeding governor cannot
including private corporations. (Chavez v. Public Estates revoke or renounce the same without the consent of
Authority, G.R No. 133250, Nov. 11, 2003) the other party. The contract has the force of law
between the parties and they are expected to abide
TO ENTER INTO CONTRACTS in good faith by their respective contractual
commitments. Just as nobody can be forced to enter
Requisites into a contract, in the same manner, once a contract
is entered into, no party can renounce it unilaterally
1. The LGU has the express, implied or inherent or without the consent of the other. It is a general
power to enter into particular contract principle of law that no one may be permitted to
2. The contract is entered into by the proper change his/her mind or disavow and go back upon
department board, committee, officer or agent. his/her own acts, or to proceed contrary thereto, to
the prejudice of the other party. (GSIS v. Province of
NOTE: No contract may be entered into by the local Tarlac, G.R. No. 157860, Dec. 1, 2003)
chief executive on behalf of the local government
without prior authorization by the sanggunian Prior authorization by municipal council

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a. Those entered into by the improper department,
Under Section 22(c) of the LGC, the local chief board, officer of agent;
executive cannot enter into a contract in behalf of b. Those that not comply with the formal requirements
the LGU without prior authorization from the of a written contract e.g., the Statute of Frauds.
sanggunian concerned. Such authorization may be in (Land Bank of the Philippines v. Cacayuran, supra.)
the form of an appropriation ordinance passed for
the year which specifically covers the project, cost, Contracts entered into by a local chief executive may
or contract entered into by the LGU. be subject to constructive ratification

However, this rule does not apply where the LGU A loan agreement entered into by the provincial
operated on a reenacted budget. In case of a governor without prior authorization from the
reenacted budget, only the annual appropriation for Sangguniang Panlalawigan is unenforceable. The
salaries and wages of existing positions, statutory Sanggunian’s failure to impugn the contract’s validity
and contractual obligations, and essential operating despite knowledge of its infirmity is an implied
expenses authorized in the annual and supplemental ratification that validates the contract. (Ocampo v. People,
budgets for the preceding year shall be deemed G.R. No. 156547-51 & 156382-85, Feb. 4, 2008)
reenacted. New contracts entered into by the local
chief executive must therefore have prior Doctrine of estoppel does not apply against a
authorization from the sanggunian. (Quisumbing v. municipal corporation to validate an invalid contract
Garcia, G.R. No. 175527, Dec. 8, 2008)
The doctrine of estoppel cannot be applied as against a
ULTRA VIRES CONTRACTS municipal corporation to validate a contract which it has
no power to make, or which it is authorized to make only
Ultra vires contracts under prescribed conditions, within prescribed
limitations, or in a prescribed mode or manner, although
Ultra vires contracts are those which: the corporation has accepted the benefits thereof and the
a. are entered into beyond the express, implied or other party has fully performed its part of the
inherent powers of the LGU; and agreement, or has expended large sums in preparation
b. do not comply with the substantive requirements of for performance. A reason frequently assigned for this
law e.g., when expenditure of public funds is to be rule is that to apply the doctrine of estoppel against a
made, there must be an actual appropriation and municipality in such a case would be to enable it to do
certificate of availability of funds. (Land Bank of the indirectly what it cannot do directly. (In Re: Pechueco
Philippines v. Cacayuran, G.R. No. 191667, April 17, Sons Company v. Provincial Board of Antique, G.R. No. L-
2013) 27038, Jan. 30, 1970)

NOTE: Such are null and void and cannot be ratified Authority to negotiate and secure grants
or validated.
The local chief executive may, upon authority of
Estoppel cannot be applied against a municipal the sanggunian, negotiate and secure financial grants or
corporation in order to validate a contract which the donations in kind, in support of the basic services or
municipal corporation has no power to make or which it is facilities enumerated under Sec. 17 of LGC, from local
authorized to make only under prescribed conditions, and foreign assistance agencies without necessity of
within prescribed limitations, or in a prescribed mode or securing clearance or approval from any department,
manner, although the corporation has accepted the agency, or office of the national government or from
benefits thereof and the other party has fully performed any higher LGU; Provided, that projects financed by
his part of the agreement, or has expended large sums in such grants or assistance with national security
preparation for performance. (Favis v. Municipality of implications shall be approved by the national
Sabangan, G.R. No. L-26522, Feb. 27, 1969) agency concerned. (LGC, Sec. 23)

Instance when a defective municipal contract ---

may be ratified Q: The City Council of Calamba issued several
resolutions authorizing Mayor Tiama to negotiate
Ratification of defective municipal contracts is with landowners within the vicinity of Barangays
possible only when there is non-compliance with the Real, Halang, and Uno, for a new city hall site and to
requirements of authority of the officer entering into purchase several lots and to execute, sign and
the contract and/or conformity with the formal deliver the required documents. Mayor Tiama then
requisites of a written contract as prescribed by law. entered into MOA, Deed of Sale, Deed of Mortgage,
Ratification may either be expressed or implied. and Deed of Assignment.

NOTE: An act attended only by an irregularity, but Thereafter, Ong, a member of the City Council,
remains within the municipality’s power, is considered questioned the lack of ratification by the City Council
as an ultra vires act subject to ratification and/or of the contracts, among others. Should all the
validation. documents pertaining to the purchase of the lots
bear the ratification by the City Council of Calamba?
Examples:

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A: NO. Sec. 22(c), LGC, provides: (c) Unless otherwise LGUs and their officials are not exempt from
provided in this Code, no contract may be entered into liability arising from death or injury to persons or
by the local chief executive in behalf of the LGU without damage to property. (LGC, Sec. 24)
prior authorization by the sanggunian concerned.
Clearly, when the local chief executive enters into Liabilities of LGUs (1994, 2009 Bar)
contracts, the law speaks of prior authorization or
authority from the Sangguniang Panlungsod and not 1. LGUs shall be liable for damages for the death of, or
ratification. It cannot be denied that the City Council injuries suffered by, any person by reason of the
issued Res. 280 authorizing Mayor Tiama to purchase defective condition of roads, streets, bridges, public
the subject lots. buildings, and other public works under their
--- control or supervision. (New Civil Code, Art. 2189)

NOTE: As aptly pointed out by the Ombudsman, NOTE: LGU is liable even if the road does not belong
ratification by the City Council is not a condition sine qua to it as long as it exercises control or supervision over
non for a mayor to enter into contracts. With the the said roads.
resolution issued by the Sangguniang Panlungsod, it
cannot be said that there was evident bad faith in 2. The State is responsible in like manner when it
purchasing the subject lots. The lack of ratification alone acts through a special agent; but not when the
does not characterize the purchase of the properties as damage has been caused by the official to whom the
one that gave unwarranted benefits to Pamana or task done properly pertains. In which case, Art.
Prudential Bank or one that caused undue injury to 2176 shall be applicable. [New Capital Code, Art.
Calamba City. (Vergara v. Ombudsman, G.R. No. 174567, 2180 (6)]
March 12, 2009)
3. When a member of a city or municipal police
Competitive or Public Bidding force refuses or fails to render aid or protection to
any person in case of danger to life or property,
Refers to a method of procurement which is open to such peace officer shall be primarily liable for
participation by any interested party and which damages and the city or municipality shall be
consists of the following processes: advertisement, pre- subsidiarily responsible therefor. (New Civil Code,
bid conference, eligibility screening of prospective Art. 34)
bidders, receipt and opening of bids, evaluation of bids,
post-qualification, and award of contract. [RA 9184, Bases for municipal liabilities
IRR, Sec 5 (h)]
1. Liability arising from violation of law
Requirement of public bidding
NOTE: Liability arising from violation of law such as
In the award of government contracts, the law requires closing municipal streets without indemnifying
competitive public bidding. It is aimed to protect the persons prejudiced thereby, non-payment of wages
public interest by giving the public the best possible to its employees due to lack of funds or other causes
advantages thru open competition. It is a mechanism or its refusal to abide a temporary restraining order
that enables the government agency to avoid or preclude may result in contempt charge and fine.
anomalies in the execution of public contracts. (Garcia
v. Burgos, G.R. No. 124130, June 29, 1998) 2. Liability for contracts

Failure of bidding NOTE:

a. LGU is liable provided that the contract is
When any of the following occurs: intra vires or it is ultra vires that is only
1. There is only one offeror attended by irregularities, which does not
2. When all the offers are non-complying or preclude ratification or the application of the
unacceptable.(Bagatsing v. Committee on doctrine of estoppel.
Privatization, G.R. No. 112399, July 14, 1995)
If it is ultra vires, which are entered into beyond
LIABILITY OF LGUs the express, implied or inherent powers of the
local government unit or do not comply with the
Scope of municipal liability substantive requirements of law they are not
liable.
Municipal liabilities arise from various sources in the b. A private individual who deals with a
conduct of municipal affairs, both governmental and municipal corporation is imputed with
proprietary. CONSTRUCTIVE knowledge of the extent of
the power or authority of the municipal
NOTE: Tests of liability is the nature of task being corporation to enter into contracts.
performed.
3. Liability for tort
Rule on the liabilities of LGUs and their officials
NOTE: They may be held liable for torts arising from

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the performance of their private and proprietary appropriated an amount for the construction of 2
functions under the principle of respondeat stages. One of the members of the group to perform a
superior. They are also liable for back salaries for play during the fiesta was Fontanilla. Before the
employees illegally dismissed/separated or for its dramatic part of the play was reached, the stage
refusal to reinstate employees. collapsed and Fontanilla was pinned underneath
resulting to his death. The heirs of Fontanilla filed a
Doctrine of Implied Municipal Liability complaint against the Municipality. Is the
municipality liable?
A municipality may become obligated, upon an implied
contract, to pay the reasonable value of the benefits A: YES. The town fiesta was an exercise of a private or
accepted or appropriated by it as to which it has the proprietary function of the municipality. Holding a fiesta,
general power to contract. The doctrine of implied even if the purpose is to commemorate a religious or
municipal liability has been said to apply to all cases historical event of the town, is in essence an act for the
where money or other property of a party is received special benefit of the community and not for the general
under such circumstances that the general law, welfare of the public performed in pursuance of a policy
independent of express contract, implies an obligation of the state. No governmental or public policy of the state
upon the municipality to do justice with respect to is involved in the celebration of a town fiesta.
the same. (Province of Cebu v. IAC, G.R. No. 72841, (Municipality of Malasiqui v. Heirs of Fontanilla, G.R. No.
January 29, 1987) L-29993, Oct. 23, 1978)
---
NOTE: The obligation of a municipal corporation
upon the doctrine of an implied contract does not NOTE: There can be no hard and fast rule for purposes of
connote an enforceable obligation. Some specific determining the true nature of an undertaking or
principle or situation of which equity takes function of a municipality; the surrounding
cognizance must be the foundation of the claim. The circumstances of a particular case are to be considered
principle of liability rests upon the theory that the and will be decisive. The basic element, however
obligation implied by law to pay does not originate beneficial to the public the undertaking may be, is that it
in the unlawful contract, but arises from is governmental in essence; otherwise the function
considerations outside it. The measure of recovery becomes private or proprietary in character.
is the benefit received by the municipal corporation. (Municipality of Malasiqui v. Heirs of Fontanilla, ibid.)
The province cannot set up the plea that the
contract was ultra vires and still retain benefits.
(Province of Cebu v. IAC, ibid.) ---
Q: X was elected as Vice Mayor of Dasol, Pangasinan.
Tort liability of LGUs The Sangguniang Bayan adopted Resolution No. 1
which increased the salaries of the Mayor and
1. LGU-engaged in governmental function – Not Municipal Treasurer to P18,636 and P16,044 per
liable annum respectively. However, the Resolution did not
2. LGU-engaged in proprietary function – Liable provide for an increase in salary of the Vice Mayor
despite the fact that such position is entitled to an
--- annual salary of P16,044. X questioned the failure of
Q: A collision between a passenger jeepney, sand the Sangguniang Bayan to appropriate an amount for
and gravel truck, and a dump truck driven by the payment of his salary. The Sangguniang Bayan
Monte and owned by the Municipality of San increased his salary and enacted a Resolution No. 2
Fernando occurred which resulted to the death appropriating an amount as payment of the unpaid
of Jessica, a passenger of the jeepney. The heirs salaries. However, the Resolution was vetoed by the
of Jessica instituted an action for damages respondent mayor. Can X avail of damages due to the
against the Municipality. Is the municipality liable failure of the respondents to pay him his lawful
for the tort committed by its employee? salary?

A: NO. The driver of the dump truck was performing A: YES. The Mayor alone should be held liable and
duties or tasks pertaining to his office – he was on his responsible and not the whole Sanggunian Bayan.
way to get a load of sand and gravel for the repair of San Respondent Mayor vetoed the Resolution without just
Fernando's municipal streets. The municipality cannot cause. While "to veto or not to veto involves the exercise
be held liable for the tort committed by its regular of discretion" as contended by respondents, respondent
employee, who was then engaged in the discharge of Mayor, however, exceeded his authority in an arbitrary
governmental functions. The death of the passenger –– manner when he vetoed the resolution since there are
tragic and deplorable though it may be –– imposed on sufficient municipal funds from which the salary of the
the municipality no duty to pay monetary compensation. petitioner could be paid.
(Municipality of San Fernando v. Hon. Firme, G.R. No. L-
52179, April 8, 1991) Respondent Mayor’s refusal, neglect or omission in
--- complying with the directives of the Provincial Budget
--- Officer and the Director of the Bureau of Local
Q: The Municipality of Malasiqui authorized the Government that the salary of X be provided for and paid
celebration of town fiesta by way of a resolution and the prescribed salary rate, is reckless and oppressive,

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 LOCAL GOVERNMENTS
hence, by way of example or correction for the public (b) Contents of petition - The petition shall state the
good, respondent Mayor is liable personally to the grounds, reasons or justifications therefore.
petitioner for exemplary or corrective damages. (Pilar v. (c) Documents attached to petition - The petition shall be
Sangguniang bayan ng Dasol, Pangasinan, G.R. No. 63216, accompanied by:
March 12, 1984) 1. Duly authenticated copy of the law or statute
--- creating the LGU or any other document
showing proof of creation of the LGU;
SETTLEMENT OF BOUNDARY DISPUTE 2. Provincial, city, municipal, or barangay map,
(1999, 2005, 2010 Bar) as the case may be, duly certified by the LMB.
3. Technical description of the boundaries of
Boundary Dispute the LGUs concerned;
4. Written certification of the provincial, city, or
When a portion or the whole of the territorial area of an municipal assessor, as the case may be, as to
LGU is claimed by two or more LGUs. territorial jurisdiction over the disputed area
according to records in custody;
Jurisdictional Responsibility for Settlement of 5. Written declarations or sworn statements of
Boundary Dispute the people residing in the disputed area; and
6. Such other documents or information as
Boundary disputes between and among local government may be required by the sanggunian hearing
units shall, as much as possible, be settled amicably. To the dispute.
this end: (d) Answer of adverse party - Upon receipt by the
sanggunian concerned of the petition together with
(a) Boundary disputes involving two (2) or more the required documents, the LGU or LGUs
barangays in the same city or municipality shall be complained against shall be furnished copies thereof
referred for settlement to the sangguniang and shall be given fifteen (15) working days within
panlungsod or sangguniang bayan concerned. which to file their answers.
(b) Boundary disputes involving two (2) or more (e) Hearing - Within five (5) working days after receipt of
municipalities within the same province shall be the answer of the adverse party, the sanggunian shall
referred for settlement to the sangguniang hear the case and allow the parties concerned to
panlalawigan concerned. present their respective evidences.
(c) Boundary disputes involving municipalities or (f) Joint hearing - When two or more sanggunians jointly
component cities of different provinces shall be hear a case, they may sit en banc or designate their
jointly referred for settlement to the sanggunians of respective representatives. Where representatives
the provinces concerned. are designated, there shall be an equal number of
(d) Boundary disputes involving a component city or representatives from each sanggunian. They shall
municipality on the one hand and a highly urbanized elect from among themselves a presiding officer and
city on the other, or two (2) or more highly a secretary. In case of disagreement, selection shall
urbanized cities, shall be jointly referred for be by drawing lot.
settlement to the respective sanggunians of the (g) Failure to settle - In the event the sanggunian fails to
parties. amicably settle the dispute within sixty (60) days
(e) In the event the sanggunian fails to effect an amicable from the date such dispute was referred thereto, it
settlement within sixty (60) days from the date the shall issue a certification to the effect and copies
dispute was referred thereto, it shall issue a thereof shall be furnished the parties concerned.
certification to that effect. Thereafter, the dispute (h) Decision - Within sixty (60) days from the date the
shall be formally tried by the sanggunian concerned certification was issued, the dispute shall be formally
which shall decide the issue within sixty (60) days tried and decided by the sanggunian concerned.
from the date of the certification referred to above. Copies of the decision shall, within fifteen (15) days
(LGC, Sec. 118) from the promulgation thereof, be furnished the
parties concerned, DILG, local assessor, COMELEC,
Procedure for Settling Boundary Disputes NSO, and other NGAs concerned.
(i) Appeal - Within the time and manner prescribed by
Article 17, Rule III of the Rules and Regulations of the LGC the Rules of Court, any party may elevate the decision
outlines the procedures governing boundary disputes, of the sanggunian concerned to the proper Regional
which succinctly includes the filing of the proper petition, Trial Court having jurisdiction over the dispute by
and in case of failure to amicably settle, a formal trial will filing therewith the appropriate pleading, stating
be conducted and a decision will be rendered thereafter. among others, the nature of the dispute, the decision
An aggrieved party can appeal the decision of the of the sanggunian concerned and the reasons for
sanggunian to the appropriate RTC. (Calanza v. PICOP, G.R. appealing therefrom. The Regional Trial Court shall
No. 146622, April 24, 2009) Said rules and regulations decide the case within one (1) year from the filing
state: thereof. Decisions on boundary disputes
promulgated jointly by two (2) or more sangguniang
(a) Filing of petition - The sanggunian concerned may panlalawigans shall be heard by the Regional Trial
initiate action by filing a petition, in the form of a Court of the province which first took cognizance of
resolution, with the sanggunian having jurisdiction the dispute.
over the dispute.

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SUCCESSION OF ELECTIVE OFFICIALS councilor’s succession to the office of vice-
mayor cannot be considered a voluntary
Vacancy renunciation of his office as councilor, since it
occurred by operation of law. (Montebon v.
Absence should be reasonably construed to mean COMELEC, G.R. No. 180444, April 8, 2008)
‘effective’ absence, that is, one that renders the officer
concerned powerless, for the time being, to discharge the b. Second highest ranking Sanggunian
powers and prerogatives of his/her office. There is no member
vacancy whenever the office is occupied by a legally
qualified incumbent. A sensu contrario, there is a vacancy 4. Office of the Punong Barangay
when there is no person lawfully authorized to assume a. Highest ranking Sanggunian member;
and exercise at present the duties of the office. (Gamboa, in case of the permanent disability of
Jr. v. Aguirre, G.R. No. 134213, July 20, 1999) highest ranking Sanggunian member,
b. Second highest ranking Sanggunian
Classes of vacancies in the elective post member

Permanent Vacancy Temporary Vacancy NOTE: For purposes of succession,

Arises when an elected Arises when an elected ranking in the Sanggunian shall be
local official: official is temporarily determined on the basis of the proportion
1. Fills a higher vacant incapacitated to perform of the votes obtained by each winning
office; or his duties due to legal or candidate to the total number of registered
2. Refuses to assume physical reason such as: voters in each district in the immediately
office; or 1. Physical sickness preceding local election. [LGC, Sec. 44 (d)(3)]
3. Fails to qualify; or 2. Leave of absence
4. Dies; or 3. Travel abroad or GR: The successor (by appointment) should come
5. Removed from office; Suspension from office. from the same political party as the sanggunian
or (LGC, Sec. 46) member whose position has become vacant.
6. Voluntarily resigns;
or XPN: In the case of vacancy in the Sangguniang
7. Permanently barangay.
incapacitated to The reason for the rule is to maintain the
discharge the party representation as willed by the
functions of his office. people in the election.
(LGC, Sec. 44)
B. In case automatic succession is not applicable and
Filling of vacancy there is vacancy in the membership of the sanggunian,
it shall be filled up by appointment in the following
1. Automatic succession manner:
2. By appointment (LGC, Sec. 45) 1. The President, through the Executive
Secretary, shall appoint the political nominee of
Rules of succession in case of permanent vacancies the local chief executive for the sangguniang
(1995, 1996, 2002 Bar) panlalawigan and panlungsod of highly
urbanized cities and independent component
A. In case of permanent vacancy in: cities. [LGC, Sec. 45 (a)(1)]
1. Office of the Governor 2. The Governor shall appoint the political
a. Vice-Governor; in his absence, nominees for the sangguniang panlungsod of
b. Highest ranking Sanggunian member; in component cities and the sangguniang bayan
case of the permanent disability of highest concerned. [LGC, Sec. 45 (a)(2)]
ranking Sanggunian member, 3. The city or municipal mayor shall appoint the
c. Second highest ranking Sanggunian recommendee of the sangguniang barangay
member concerned. [LGC, Sec. 45 (a)(3)]
2. Office of the Mayor
a. Vice-Mayor; in his absence, Hold-over status
b. Highest ranking Sanggunian member; in
case of the permanent disability of highest In case of failure of elections involving barangay officials,
ranking Sanggunian member, the incumbent officials shall remain in office in a hold-
c. Second highest ranking Sanggunian over capacity pursuant to R.A. 9164. (Adap v. COMELEC,
member G.R. No. 161984, Feb. 21, 2007)

3. Office of the Vice Governor or Vice-Mayor The “last vacancy” in the Sanggunian
a. Highest ranking Sanggunian member; in
case of the permanent disability of highest It refers to the vacancy created by the elevation of the
ranking Sanggunian member, member formerly occupying the next higher in rank,
which in turn also had become vacant by any of the
NOTE: The highest ranking municipal causes enumerated.

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the powers and perform the duties and functions
--- of the local chief executive concerned.
Q: In the 1997 local elections Calimlim was elected as
Mayor, Aquino as Vice-Mayor and Tamayo as the NOTE:
highest ranking member of the Sanggunian. In 1999,
Mayor Calimlim died, thus Vice-Mayor Aquino GR: The acting Governor or Mayor cannot exercise
succeeded him as Mayor. Accordingly, the highest- the power to appoint, suspend or dismiss
ranking member of the Sanggunian, Tamayo, was employees.
elevated to the position of the Vice-Mayor. Since a
vacancy occurred in the Sangguniang Bayan by the XPN: If the period of temporary incapacity exceeds
elevation of petitioner Tamayo to the office of the 30 working days.
Vice-Mayor, Governor Agbayani appointed Navarro
as Member of the Sangguniang Bayan. Navarro 2. If travelling within the country, outside his
belonged to the same political party as that of jurisdiction, for a period not exceeding 3 days, he
Tamayo. may designate in writing the officer-in-charge for
the same office. The OIC cannot exercise the power
Respondents argue that it was the former vice-mayor to appoint, suspend or dismiss employee.
Aquino who created the permanent vacancy in the 3. If without said authorization, the Vice-Governor,
Sanggunian and thus, the appointee must come from City or Municipal Vice-Mayor or the highest
the former vice mayor’s political party. Petitioners, ranking sangguniang barangay member shall
however, contend that it was the elevation of assume the powers, duties and functions of the
Tamayo to the position of vice-mayor which resulted said office on the 4th day of absence. (LGC, Sec. 46)
in a permanent vacancy and thus, the person to be
appointed to the vacated position should come from Termination of temporary incapacity
the same political party as that of Tamayo, in this
case Navarro. Are the respondents correct? 1. Upon submission to the appropriate sanggunian
of a written declaration by the local chief
A: NO. With the elevation of Tamayo to the position of executive concerned that he has reported back to
Vice-Mayor, a vacancy occurred in the Sanggunian that office, if the temporary incapacity was due to
should be filled up with someone who should belong to a. Leave of absence;
the political party of petitioner Tamayo. Under Sec 44 of b. Travel abroad; and
the LGC, a permanent vacancy arises when an elective c. Suspension
official fills a higher vacant office, refuses to assume
office, fails to qualify, dies, is removed from office, 2. Upon submission by the local chief executive of
voluntarily resigns, or is otherwise permanently the necessary documents showing that the legal
incapacitated to discharge the functions of his office. Sec causes no longer exist, if the temporary
45 (b) of the same law provides that “only the nominee incapacity was due to legal reasons. [LGC, Sec.
of the political party under which the Sanggunian 46(b)]
member concerned has been elected and whose
elevation to the position next higher in rank created the Rules on consecutiveness of terms and/or involuntary
last vacancy in the Sanggunian shall be appointed in the interruption:
manner herein provided. The appointee shall come from
the political party as that of the Sanggunian member 1. When a permanent vacancy occurs in an elective
who caused the vacancy…”The term “last vacancy” is position and the official merely assumed the position
thus used in Sec. 45(b) to differentiate it from the other pursuant to the rules on succession under the LGC, then
vacancy previously created. The term “by no means” his service for the unexpired portion of the term of the
refers to the vacancy in the No. 8 position which replaced official cannot be treated as one full term as
occurred with the elevation of 8th placer to the 7th contemplated under the subject constitutional and
position in the Sanggunian. Such construction will result statutory provision that service cannot be counted in the
in absurdity. (Navarro v. CA, G.R. No. 141307, March 28, application of any term limit. If the official runs again for
2001) the same position he held prior to his assumption of the
--- higher office, then his succession to said position is by
operation of law and is considered an involuntary
NOTE: In case of vacancy in the representation of the severance or interruption.
youth and the barangay in the Sanggunian, it shall be
filled automatically by the official next in rank of the 2. An elective official, who has served for three
organization concerned. [LGC, Sec. 45(d)] consecutive terms and who did not seek the elective
position for what could be his fourth term, but later won
Rules on temporary vacancies (2002 Bar) in a recall election, had an interruption in the continuity of
the official’s service. For, he had become in the interim, i.e.,
1. In case of temporary vacancy of the post of the from the end of the 3rd term up to the recall election, a
local chief executive (leave of absence, travel private citizen.
abroad, and suspension): Vice- Governor, City or
Municipal Vice Mayor, or the highest ranking 3. The abolition of an elective local office due to the
sangguniang barangay shall automatically exercise conversion of a municipality to a city does not, by itself,

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work to interrupt the incumbent official’s continuity of conviction by final judgment must precede the filing
service. by the provincial governor of the charges and trial
by the provincial board." [Mindano v. Silvosa, et al.,
4. Preventive suspension is not a term-interrupting event 97 Phil. 144-145 (1955)]
as the elective officer’s continued stay and entitlement to
the office remain unaffected during the period of 4. Commission of any offense involving moral
suspension, although he is barred from exercising the turpitude, or an offense punishable by at least
functions of his office during this period. prision mayor

5. When a candidate is proclaimed as winner for an 5. Abuse of authority

elective position and assumes office, his term is
interrupted when he loses in an election protest and is GR: Unauthorized absence for 15 consecutive
ousted from office, thus disenabling him from serving working days
what would otherwise be the unexpired portion of his
term of office had the protest been dismissed (Lonzanida XPNs: In the case of members of the
and Dizon). The break or interruption need not be for a Sangguniang:
full term of three years or for the major part of the 3-year a. Panlalawigan
term; an interruption for any length of time, provided the b. Panlungsod
cause is involuntary, is sufficient to break the continuity of c. Bayan
service. d. Barangay

6. When an official is defeated in an election protest and 6. Application for, or acquisition of, foreign
said decision becomes final after said official had served citizenship or residence or the status of an
the full term for said office, then his loss in the election immigrant of another country
contest does not constitute an interruption since he has 7. Such other grounds as may be provided by the
managed to serve the term from start to finish. His full Code and other laws. (LGC, Sec. 60)
service, despite the defeat, should be counted in the
application of term limits because the nullification of his JURISDICTION
proclamation came after the expiration of the term.
(Abundo v. COMELEC, G.R. No. 201716, Jan. 8, 2013) An elective local official may be removed from office on
any of the grounds enumerated above only by an order
from the proper court. The Office of the President does
not have any power to remove elected officials, since
DISCIPLINE OF LOCAL OFFICIALS such power is exclusively vested in the proper courts as
expressly provided for in the last paragraph of Sec. 60
of LGC. (Salalima v. Guingona, G.R. No. 117589-92, May
ELECTIVE OFFICIALS 22, 1996)

Grounds PREVENTIVE SUSPENSION

An elective local official may be disciplined, Preventive suspension may be imposed:

suspended or removed from office on any of the
following grounds: 1. After the issues are joined;
2. When the evidence of guilt is strong;
1. Disloyalty to the Republic of the Philippines 3. Given the gravity of the offense, there is great
probability that the continuance in office of the
NOTE: An administrative, not criminal, case for respondent could influence the witnesses or pose
disloyalty to the Republic only requires a threat to the safety and integrity of the records
substantial evidence. (Aguinaldo v. Santos, G.R. No. and other evidence. [LGC, Sec. 63(b)]
94115, August 21, 1992)
NOTE: It is immaterial that no evidence has
2. Culpable violation of the Constitution been adduced to prove that the official may
influence possible witnesses or may tamper with
3. Dishonesty, oppression, misconduct in office, gross the public records. It is sufficient that there exists
negligence, or dereliction of duty such a possibility. (Hagad v. Gozo-Dadole, G.R. No.
108072, December 12, 1995)
NOTE: Acts of lasciviousness cannot be considered
misconduct in office, and may not be the basis of an
order of suspension. To constitute a ground for
disciplinary action, the mayor charged with the
offense must be convicted in the criminal action.
(Palma v. Fortich, G.R. No. L-59679, January 29, 1987)
Persons who can impose preventive suspension
Before the provincial governor and board may act
and proceed against the municipal official, a Person Authorized to Respondent Local Official

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 LOCAL GOVERNMENTS

Impose Suspension conduct administrative investigation

Elective official of a The Ombudsman and the Office of the President

province, highly have concurrent jurisdiction to conduct
President urbanized or administrative investigations over elective officials.
independent (Hagad v. Gozo-Dadole, G.R. No. 108072, December 12,
component city 1995)
Elective official of Signing of preventive suspension order
Governor component city or
municipality The Ombudsman, as well as his Deputy, may sign an
order preventively suspending officials. Also, the length
Elective official of
of the period of suspension within the limits provided
Mayor barangay [LGC, Sec.
by law and the evaluation of the strength of the evidence
63(a)]
both lie in the discretion of the Ombudsman.
(Castillo-Co v. Barbers, G.R. No. 129952, June 16, 1998)
Rules on preventive suspension
Effect of an appeal on the preventive suspension
1. A single preventive suspension shall not extend
ordered by the Ombudsman
beyond 60 days. (Rios v. Sandiganbayan, G.R. No.
129913, September 26, 1997)
An appeal shall not stop the decision from being
2. In the event that there are several administrative
executory. In case the penalty is suspension or
cases filed, the elective official cannot be
removal and the respondent wins such appeal, he
preventively suspended for more than 90 days
shall be considered as having been under preventive
within a single year on the same ground or
suspension and shall be paid the salary and such
grounds existing and known at the time of his
other emoluments that he did not receive by reason of
first suspension. [LGC, Sec. 63(b)]
the suspension or removal. A decision of the Officeof the
Ombudsman in administrative cases shall be executed
Preventive suspension under RA 6770
as a matter of course. (Office of the Ombudsman v.
(Ombudsman Act of 1989) vs. Preventive
Samaniego, G.R. No. 175573, Oct. 5, 2010)
suspension under RA 7160 (LGC)
REMOVAL
Preventive Suspension Preventive Suspension
under RA 6770 under the LGC Removal
Requirements
1. The evidence of guilt 1. There is reasonable Removal imports the forcible separation of the
is strong; and ground to believe that incumbent before the expiration of his term and can be
2. That any of the the respondent has done only for causes as provided by law. (Dario v.
following committed the act or Mison, G.R. No. 81954, Aug. 8, 1989)
circumstances are acts complained of;
present: 2. The evidence of guilt is NOTE: The unjust removal or non-compliance with the
a. The charge against strong; prescribed procedure constitutes reversible error and
the officer or 3. The gravity of the this entitles the officer or employee to reinstatement
employee involves offense so warrants with back salaries and without loss of seniority rights.
dishonesty, 4. The continuance in
oppression or office of the ---
grave misconduct respondent could Q: Does the Sangguniang Panlungsod and
or neglect in the influence the Sangguniang Bayan have the power to remove
performance of witnesses or pose a elective officials?
duty; threat to the safety and
b. The charges would integrity of the records A: NO. The pertinent legal provisions and cases
warrant removal and other evidence decided by this Court firmly establish that the
from office; or Sanggunaing Bayan is not empowered to do so. The
c. The respondent’s most extreme penalty that the Sangguniang Panlungsod
continued stay in or Sangguniang Bayan may impose on the erring elective
office may barangay official is suspension; if it deems that the
prejudice the case removal of the official from service is warranted, then it
filed against him. can resolve that the proper charges be filed in court. The
courts are exclusively vested with the power to remove
Maximum period elective officials under Section 60 of the Local
6 months 60 days Government Code. (Sangguniang Barangay of Don
Mariano Marcos v. Martinez, G.R. No. 170626, March 3,
(Hagad v. Gozo-Dadole, G.R. No. 108072, December 12,
2008)
1995).
---
Power of the Ombudsman under RA 6770 to

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255 FACULTY OF CIVIL LAW
 POLITICAL LAW
Resignation of public elective officials removal of local officials, which suggests that
Congress may exercise removal powers. Note also
Resignation of elective officials shall be deemed that legally, supervision is not incompatible with
effective only upon acceptance by the following disciplinary action. (Ganzon v. CA, G.R. No. 93252,
authorities: Aug. 5, 1991)
1. The President – in case of Governors, Vice-
Governors, and Mayors and Vice-Mayors of highly Under AO 23, the President has delegated the
urbanized cities and independent and power to investigate complaints to the Secretary
component cities of Interior and Local Government. This is valid
2. The Governor – in the case of municipal Mayors delegation because what is delegated is only the
and Vice-Mayors, city Mayors and Vice-Mayors of power to investigate, not the power to discipline.
component cities Besides, the power of the Secretary of Interior
3. The Sanggunian concerned – in case of and Local Government is based on the “alter-
sanggunian members ego” principle. (Joson v. Torres, G.R. No. 131255, May
4. The City or Municipal Mayor – in case of barangay 20, 1998)
officials (LGC, Sec. 82)
2. Sangguniang Panlalawigan – Elective officials of
NOTE: The resignation shall be deemed accepted if municipalities;
not acted upon by the authority concerned within 15
working days from receipt thereof. Irrevocable NOTE: Decision may be appealed to the Office of the
resignations by sanggunian members shall be deemed President
accepted upon representation before an open session
of the sanggunian concerned and duly entered in its 3. Sangguniang Panglungsod or Bayan – Elective
records, except where the sanggunian members are barangay officials (LGC, Sec. 61)
subject to recall elections or to cases where existing laws
prescribed the manner of acting upon such resignations. NOTE: Decision shall be final and executory.
[LGC, Sec. 82(c)(d)]
DOCTRINE OF CONDONATION
ADMINISTRATIVE APPEAL (Correlate discussion under Law on Public Officers)

Rule on administrative appeals Basic Postulate

Decisions in administrative cases may, within 30 days An elective official’s re-election cuts off the right to
from receipt thereof, be appealed to the following: remove him for an administrative offense committed
1. The Sangguniang Panlalawigan, in the case of during a prior term.
decisions of the Sangguniang Panlungsod of
component cities and the Sangguniang Bayan; and History of the Doctrine
2. The Office of the President, in the case of
decisions of the Sangguniang Panlalawigan and the It is a jurisprudential creation that originated from the
Sangguniang Panlungsod of Highly Urbanized Cities 1959 case of Pascual v. Hon. Provincial Board of Nueva
and Independent Component Cities. (LGC, Sec. 67) Ecija, (Pascual), which was therefore decided under the
1935 Constitution. As there was no legal precedent on
NOTE: Decisions of the Office of the President shall the issue at that time, the Supreme Court, in Pascual,
be final and executory. resorted to American authorities. The conclusion is at
once problematic since the Supreme Court has now
Persons authorized to file administrative complaint uncovered that there is really no established weight of
authority in the US favoring the doctrine of condonation.
1. Any private individual or any government officer or In fact, as pointed out during the oral arguments of
employee by filing a verified complaint; Ombudsman Carpio-Morales v. Binay, Jr., at least
2. Office of the President or any government seventeen (17) states in the US have abandoned the
agency duly authorized by law to ensure that condonation doctrine.
LGUs act within their prescribed powers and
functions. (Rule 3, Sec.1, AO 23, Dec. 17, 1992) Abandonment of the Doctrine

A verified complaint shall be filed with the To begin with, the concept of public office is a public
following: trust and the corollary requirement of accountability to
the people at all times, as mandated under the 1987
1. Office of the President – Against elective official of Constitution, is plainly inconsistent with the idea that an
provinces, highly urbanized cities, independent elective local official’s administrative liability for a
component cities, or component cities. misconduct committed during a prior term can be wiped
off by the fact that he was elected to a second term of
NOTE: It may be noted that the Constitution office, or even another elective post. Election is not a
places local governments under the supervision mode of condoning an administrative offense, and there
of the Executive. Likewise, the Constitution allows is simply no constitutional or statutory basis in our
Congress to include in the LGC provisions for jurisdiction to support the notion that an official elected

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 LOCAL GOVERNMENTS
for a different term is fully absolved of any Imposable penalties
administrative liability arising from an offense done
during a prior term. In this jurisdiction, liability arising Except as otherwise provided by law, the local chief
from administrative offenses may be condoned by the executive may impose the penalty of:
President in light of Section 19, Article VII of the 1987
Constitution which was interpreted in Llamas v. Orbos to 1. Removal from service
apply to administrative offenses. 2. Demotion in rank
3. Suspension for not more than one (1) year
Also, it cannot be inferred from Section 60 of the LGC without pay
that the grounds for discipline enumerated therein 4. Fine in an amount not exceeding six (6) months’
cannot anymore be invoked against an elective local salary
official to hold him administratively liable once he is re- 5. Reprimand and otherwise discipline subordinate
elected to office. In fact, Section 40 (b) of the LGC officials and employees under his jurisdiction
precludes condonation since in the first place, an elective
local official who is meted with the penalty of removal NOTE: If the penalty imposed is suspension without pay
could not be re-elected to an elective local position due for not more than thirty (30) days, his decision shall be
to a direct disqualification from running for such post. In final.
similar regard, Section 52 (a) of the Revised Rules on
Administrative Cases in the Civil Service imposes a If the penalty imposed is heavier than suspension of
penalty of perpetual disqualification from holding public thirty (30) days, the decision shall be appealable to
office as an accessory to the penalty of dismissal from the Civil Service Commission, which shall decide the
service. appeal within thirty (30) days from receipt thereof. (LGC,
Sec. 87)
Reading the 1987 Constitution together with the above-
cited legal provisions now leads the Supreme Court to ---
the conclusion that the doctrine of condonation is Q: Salumbides and Glenda were appointed as
actually bereft of legal bases. Municipal Legal Officer/Administrator and
Municipal Budget Officer, respectively. A complaint
APPOINTIVE OFFICIALS was filed with the Office of the Ombudsman against
Salumbides and Glenda. They urge the Court to
Appointive Officials and the Civil Service Commission expand the settled doctrine of condonation to cover
coterminous appointive officials who were
The authority granted by the Civil Service Commission administratively charged along with the re-elected
(CSC) to a city government to “take final action” on all its official/appointing authority with infractions
appointments did not deprive the CSC of its authority and allegedly committed during their preceding term.
duty to review appointments. The CSC is empowered to They contend that the non-application of the
take appropriate action on all appointments and other condonation doctrine to appointive officials violates
personnel actions. Such power includes the authority to the right to equal protection of the law. Is the
recall appointments initially approved in disregard of contention tenable?
applicable provisions of the Civil Service law and
regulations. (Nazareno v. City of Dumaguete, G.R. No. A. NO. In the recent case of Quinto v. COMELEC, it
181559, Oct. 2, 2009) discussed the material and substantive distinctions
between elective and appointive officials that could well
NOTE: The municipal mayor, being the appointing apply to the doctrine of condonation. It is the will of the
authority, is the real party in interest to challenge the populace, not the whim of one person who happens to be
CSC’s disapproval of the appointment of his/her the appointing authority, which could extinguish an
appointee. The CSC’s disapproval of an appointment is a administrative liability. Since Salumbides and Glenda
challenge to the exercise of the appointing authority’s hold appointive positions, they cannot claim the mandate
discretion. The appointing authority must have the right of the electorate. The people cannot be charged with the
to contest the disapproval. (Dagadag v. Tongnawa, G.R. presumption of full knowledge of the life and character
Nos. 161166-67, Feb. 3, 2005) of each and every probable appointee of the elective
official ahead of the latter’s actual reelection. There is
Preventive suspension of appointive local officials neither subversion of the sovereign will nor
and employees disenfranchisement of the electorate to speak of, in the
case of reappointed coterminous employees. (Salumbides
The local chief executives may preventively suspend, v. Office of the Ombudsman, G.R. No. 180917, April 23,
for a period not exceeding sixty (60) days, any 2010)
subordinate official or employee under his authority
pending investigation if the charge against such official ---
or employee involves dishonesty, oppression, or
grave misconduct or neglect in the performance of RECALL
duty, or if there is reason to believe that the respondent (2000, 2002, 2008, 2010 Bar)
is guilty of the charges which would warrant his
removal from the service. (LGC, Sec. 85) It is a mode of removal of a public officer, by the people,
before the end of his term. The people’s prerogative to

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257 FACULTY OF CIVIL LAW
 POLITICAL LAW
remove a public officer is an incident of their sovereign them to bring up any charge of abuse or corruption
power, and in the absence of constitutional restraint, the against the local elective officials who are the subject of
power is implied in all governmental operations. (Garcia any recall petition.
v. COMELEC, G.R. No. 111511, Oct. 5, 1993)
Recall initiation (2002 Bar)
NOTE: All expenses incident to recall elections shall be
borne by the COMELEC. For this purpose, the annual The Recall of any elective provincial, city, municipal or
General Appropriations Act shall include a barangay official shall be commenced by a petition of a
contingency fund at the disposal of the COMELEC for registered voter in the LGU concerned and supported
the conduct of recall elections. (LGC, Sec. 75) by the registered voters in the LGU concerned during
the election in which the local official sought to be
--- recalled was elected subject to the following percentage
Q: Goh filed before the COMELEC a recall petition requirements:
against Mayor Bayron due to loss of trust and
confidence. On 1 April 2014, the COMELEC a. At least twenty-five percent (25%) in the case
promulgated Resolution No. 9864 which found the LGUs with a voting population of not more
recall petition sufficient in form and substance, but than twenty thousand (20,000);
suspended the funding of any and all recall elections b. At least twenty percent (20%) in the case of LGUs
until the resolution of the funding issue. Petitioner with a voting population of at least twenty
submits that the same is a grave abdication and thousand (20,000) but not more than seventy-
wanton betrayal of the constitutional mandate of the five thousand (75,000): Provided, That in no case
COMELEC and a grievous violation of the sovereign shall the required petitioners be less than five
power of the people. What Resolution Nos. 9864 and thousand (5,000);
9882 have given with one hand (the affirmation of c. At least fifteen percent (15%) in the case of LGUs
the sufficiency of the Recall Petition), they have with a voting population of at least seventy-five
taken away with the other (the issue of lack funding). thousand (75,000) but not more than three
The COMELEC suspended the holding of a recall hundred thousand (300,000): Provided, however,
election supposedly through lack of funding. Did the That in no case shall the required number of
COMELEC gravely abuse its discretion when it petitioners be less than fifteen thousand
suspended the recall election? (15,000); and
d. At least ten percent (10%) in the case of LGUs with a
A: YES. The COMELEC committed grave abuse of voting population of over three hundred thousand
discretion in issuing Resolution Nos. 9864 and 9882. The (300,000): Provided, however, that in no case shall
2014 GAA provides the line item appropriation to allow the required petitioners be less than forty-five
the COMELEC to perform its constitutional mandate of thousand (45,000). (LGC, Sec. 70, as amended by RA
conducting recall elections. There is no need for 9244)
supplemental legislation to authorize the COMELEC to
conduct recall elections for 2014. Considering that there NOTE: By virtue of RA 9244, Secs. 70 and 71 of the LGC
is an existing line item appropriation for the conduct of were amended, and the Preparatory Recall Assembly
recall elections in the 2014 GAA, we see no reason why has been eliminated as a mode of instituting recall
the COMELEC is unable to perform its constitutional of elective local government officials.
mandate to “enforce and administer all laws and
regulations relative to the conduct of x x x recall.” Should All pending petitions for recall initiated through the
the funds appropriated in the 2014 GAA be deemed Preparatory Recall Assembly shall be considered
insufficient, then the COMELEC Chairman may exercise dismissed upon the effectivity of RA 9244. (Approved
his authority to augment such line item appropriation February. 19, 2004)
from the COMELEC’s existing savings, as this
augmentation is expressly authorized in the 2014 GAA. Recall process
Resolution No. 9864 is therefor partially reverse and set
aside insofar as it directed the suspension of any and all 1. Petition of a registered voter in the LGU
proceedings in the recall petition. (Goh v. Bayron, G.R No. concerned, supported by percentage of registered
212584, Nov. 25, 2014) voters during the election in which the local official
--- sought to be recalled was elected.
2. Within 15 days after filing, COMELEC must certify
Ground for recall the sufficiency of the required number of
signatures.
The only ground for recall of local government
officials is loss of confidence. It is not subject to judicial NOTE: Failure to obtain required number
inquiry. The Court ruled that ‘loss of confidence’ as a automatically nullifies petition.
ground for recall is a political question. (Garcia v.
COMELEC, G.R. No. 111511, Oct. 5, 1993) 3. Within 3 days of certification of sufficiency,
COMELEC shall provide the official with copy of
This means that the people may petition to recall any petition and shall cause its publication for three
local elective officials without specifying any particular weeks (once a week) in a national newspaper and a
ground except loss of confidence. There is no need for local newspaper of general circulation. Petition

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 NATIONAL ECONOMY AND PATRIMONY
must also be posted for 10 to 20 days at ---
conspicuous places. (LGC, Sec. 70 (b)(2), as ---
amended by RA 9244) Q. Will it be proper for the COMELEC to act on a
petition for recall signed by just one person?
NOTE: Protest should be filed at this point and
ruled with finality within 15 days after filing. A: NO. A petition for recall signed by just one person is in
violation of the statutory 25% minimum requirement as
4. COMELEC verifies and authenticates the to the number of signatures supporting any petition
signature for recall. (Angobung v. COMELEC, G.R. No. 126576, March
5. COMELEC announces acceptance of candidates. 5, 1997)
6. COMELEC sets election within 30 days after the ---
filing of the resolution or petition for recall in the
case of barangay/city/municipality, and 45 days in TERM LIMITS
the case of provincial officials. Officials
sought to be recalled are automatic candidates. Term of office of an elected local official (2006
(LGC, Secs. 70 & 71) Bar)

NOTE: The official or officials sought to be recalled Three (3) years starting from noon of June 30
shall automatically be considered as duly registered following the election or such date as may be
candidate or candidates to the pertinent positions provided by law, except that of elective barangay
and, like other candidates, shall be entitled to be officials, for maximum of 3 consecutive terms in the
voted upon. (LGC, Sec. 71) same position. (LGC, Sec. 43)

Effectivity of Recall (2002, 2010 Bar) The term of office of Barangay and Sangguniang
Kabataan elective officials, by virtue of RA 9164 and RA
The recall of an elective local official shall be effective only 10742, is three (3) years.
upon the election and proclamation of a successor in the
person of the candidate receiving the highest number of NOTE: The objective of imposing the three-term limit rule
votes cast during the election on recall. is to “avoid the evil of a single person accumulating excess
power over a particular territorial jurisdiction as a result
Should the official sought to be recalled receive the of a prolonged stay in the same office”.
highest number of votes, confidence in him is thereby
affirmed, and he shall continue in office. (LGC, Sec. 72) For a three term rule to apply, the local official must
have fully served the term and been elected through
Prohibition from resignation (2010 Bar) regular election.

The elective local official sought to be recalled shall not be ---

allowed to resign while the recall process is in progress. Q: From 2004 to 2007 and 2007 to 2010, Naval had
(LGC, Sec. 73) been elected as a Board Member of the Sangguniang
Panlalawigan for the Second District, Province of
Limitations on recall (2008 Bar) Camarines Sur. On October 12, 2009, the President
approved R.A. No. 9716, which reapportioned the
1. Any elective local official may be the subject of a legislative districts in Camarines Sur. 8 out of 10
recall election only once during his term of office for towns were taken from the old Second District to
loss of confidence; and form the present Third District. The present Second
2. No recall shall take place within one (1) year District is composed of the two remaining towns,
from the date of the official’s assumption to office Gainza and Milaor, merged with five towns from the
or one (1) year immediately preceding a old First District. In the 2010 elections, Naval once
regular election. (LGC, Sec. 74) again won as among the members of the Sanggunian,
Third District. He served until 2013. In the 2013
NOTE: The one-year time bar will not apply where the elections, Naval ran anew and was re-elected as
local official sought to be recalled is a mayor and the Member of the Sanggunian, Third District. Nelson
approaching election is a barangay election. Julia was likewise a Sanggunian Member candidate
(Angobung v. COMELEC, G.R. No. 126576, March 5, 1997) from the Third District in the 2013 elections. He filed
before the COMELEC a Verified Petition to Deny Due
--- Course or to Cancel COC of Naval. Julia posited that
Q: Sec. 74 of the LGC provides that “no recall shall Naval had fully served for three consecutive terms as
take place within one year immediately preceding a a member of the Sanggunian, irrespective of the
regular local election.” What does the term “regular district he had been elected from. Allowing Naval to
local election,” as used in this section, mean? run as a Sanggunian member for the fourth time is
violative of the inflexible three-term limit rule. Is Julia
A: Referring to an election where the office held by the correct?
local elective official sought to be recalled is to be
actually contested and filled by the electorate. (Paras v. A: YES. As worded, the constitutional provision fixes the
COMELEC, G.R. No. 123169, Nov. 4, 1996) term of a local elective office and limits an elective

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259 FACULTY OF CIVIL LAW
 POLITICAL LAW
official’s stay in office to no more than three consecutive
terms. The “limitation” under this first branch of the NATIONAL ECONOMY AND PATRIMONY
provision is expressed in the negative—“no such official
shall serve for more than three consecutive terms.” This
formulation—no more than three consecutive terms—is a Threefold goals of the national economy
clear command suggesting the existence of an inflexible
rule. This examination of the wording of the constitutional 1. More equitable distribution of opportunities,
provision and of the circumstances surrounding its income and wealth
formulation impresses upon us the clear intent to make 2. Sustained increase in the amount of goods and
term limitation a high priority constitutional objective services produced by the nation for the benefit of
whose terms must be strictly construed and which cannot the people
be defeated by, nor sacrificed for, values of less than equal 3. Expanding productivity. (1987 Constitution, Art. XII,
constitutional worth. Sec 1)

In Naval’s case, the words of R.A. No. 9716 plainly state Patrimony
that the new Second District is to be created, but the Third
District is to be renamed. The rationale behind It refers not only to natural resources but also to cultural
reapportionment is the constitutional requirement to heritage. (Manila Prince Hotel v. GSIS, G.R. No. 122156,
achieve equality of representation among the Feb. 3, 1997)
districts.The aim of legislative apportionment is to
equalize population and voting power among districts. REGALIAN DOCTRINE
The basis for districting shall be the number of the (1990, 1994, 1998, 1999, 2006 Bar)
inhabitants of a city or a province and not the number of
registered voters therein. Naval’s ineligibility to run, by Regalian Doctrine (Jura Regalia)
reason of violation of the three-term limit rule, does not
undermine the right to equal representation of any of the The Regalian Doctrine dictates that “all lands not
districts in Camarines Sur. With or without him, the appearing to be clearly of private dominion presumably
renamed Third District, which he labels as a new set of belong to the State. Unless public land is shown to have
constituents, would still be represented, albeit by another been reclassified or alienated to a private person by the
eligible person. State, it remains part of the inalienable public domain.
Indeed, occupation thereof in the concept of owner, no
In sum, there is no compelling reason to side with Naval. matter how long, cannot ripen into ownership and be
To declare otherwise would be to create a dangerous registered as a title.” (Republic v. Sps. Benigno, G.R. No.
precedent unintended by the drafters of our Constitution 205492, March 11, 2015)
and of R.A. No. 9716. Considering that the one-term gap
or rest after three consecutive elections is a result of a NOTE: All lands of the public domain, waters, minerals,
compromise among the members of the Constitutional coal, petroleum, and other mineral oils, all forces of
Commission, no cavalier exemptions or exceptions to its potential energy, fisheries, forests, or timber, wildlife,
application is to be allowed. Further, sustaining Naval’s flora and fauna, and other natural resources are owned
arguments would practically allow him to hold the same by the state. With the exception of agricultural lands, all
office for 15 years. (Naval v. COMELEC, G.R. No. 207851, other natural resources shall not be alienated. (1987
July 8, 2014. Constitution, Art. XII, Sec. 2)
---
Effect of the Regalian Doctrine
Term limit of Barangay officials
The burden of proof in overcoming the presumption of
The term of office of barangay officials was fixed at three State ownership of the lands of the public domain is on
years under RA 9164 (19 March 2002). Further, Sec.43 the person applying for registration, who must prove
(b) provides that "no local elective official shall serve that the land subject of the application is alienable or
for more than three (3) consecutive terms in the same disposable. To overcome this presumption,
position. The Court interpreted thissection referring to incontrovertible evidence must be presented to establish
all local elective officials without exclusions or that the land subject of the application is alienable or
exceptions. (COMELEC v. Cruz, G.R. No. 186616, Nov. 20, disposable. (Republic v. Lualhati, G.R. No. 183511, March
25, 2015)

2009)
XPNs to the Regalian Doctrine
NOTE: Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the 1. When there is an existence of native title to land, or
continuity of service for the full term for which the ownership of land by Filipinos by virtue of
elective official concerned was elected. (Sec 43(b), LGC; see possession under a claim of ownership since time
previous discussion on Abundo v. COMELEC, infra.) immemorial and independent of any grant from the
Spanish Crown. Cariño case firmly established a
concept of private land title that existed irrespective
of any royal grant from the State and was based on

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 NATIONAL ECONOMY AND PATRIMONY
the strong mandate extended to the Islands via the NOTE: It would seem therefore that
Philippine Bill of 1902. (Cariño v. Insular corporations are excluded, or at least must be
Government, G.R. No. 2869, March 25, 1907) fully owned by Filipinos.

2. Any land in the possession of an occupant and of his 5. Small-scale utilization of natural resources by
predecessors-in-interest since time immemorial. Filipino citizens, as well as cooperative fish farming,
Such possession would justify the presumption that with priority to subsistence fishermen and
the land had never been part of the public domain fishworkers in rivers, lakes, bays, and lagoons.
or that it had been a private property even before
the Spanish conquest. (Oh Cho v. Director of Land, Native Title
G.R. No. 48321, Aug. 31, 1946)
Refers to the Indigenous Cultural
Limitations imposed by Sec. 2, Art II that embody the Communities/Indigenous Peoples (ICCs/IPs)
Jura Regalia of the State preconquest rights to lands and domains held under a
claim of private ownership as far back as memory
1. Only agricultural lands of the public domain may be reaches. These lands are deemed never to have been
alienated. public lands and are indisputably presumed to have been
held that way since before the Spanish Conquest. The
2. The exploration, development, and utilization of all rights of ICCs/IPs to their ancestral domains (which also
natural resources shall be under the full control and include ancestral lands) by virtue of native title shall be
supervision of the State either by directly recognized and respected. (Indigenous Peoples’ Rights
undertaking such exploration, development, and Act, Sec. 11; Cruz v. Sec. of DENR, G.R. No. 135385, Dec. 6,
utilization or through co-production, joint venture, 2000)
or production-sharing agreements with qualified
persons or corporations. NOTE: Formal recognition, when solicited by ICCs/IPs
concerned, shall be embodied in a Certificate of Ancestral
NOTE: Two levels of controls that must be Domain Title which shall recognize the title of the
considered: concerned ICCs/IPs over the territories identified and
delineated. (Indigenous Peoples’ Rights Act, Sec. 11)
First level: control over the corporation which
may engage with the State in “co-production, Ancestral domains
joint venture, or production sharing
agreements.” If individuals, they must be All areas belonging to ICCs/IPs held under a claim of
Filipino citizens; if corporations, the ownership ownership, occupied or possessed by ICCs/IPs by
must be 60% Filipino. themselves or through their ancestors, communally or
individually since time immemorial, continuously until
Second level: control of the “co-production, joint the present, except when interrupted by war, force
venture, or production-sharing” operation. This majeure or displacement by force, deceit, stealth or as a
must be under the full control and supervision consequence of government projects or any other
of the State. voluntary dealings with government and/or private
individuals or corporations. [RA 8371, Sec. 3 (a)]
What the new rule says is that whenever
natural resources are involved, particularly in Ancestral lands
the case of inalienable natural resources, the
State must always have some control of the Lands held by the ICCs/IPs under the same conditions as
exploration, development, and utilization even ancestral domains except that these are limited to lands
if the individual or corporation engaged in the and that these lands are not merely occupied and
operation is a Filipino. This rule is not possessed but are also utilized by the ICCs/IPs under
retroactive. claims of individual or traditional group ownership. [RA
8371, Sec. 3 (b)]
3. All agreements with the qualified private sector may
be only for a period not exceeding 25 years, RA 8371 (Indigenous Peoples’ Rights Act) does not
renewable for another 25 years. infringe upon the State’s ownership over the natural
resources within the ancestral domains
XPN: Not applicable to “water rights for
irrigation, water supply, fisheries, or industrial Sec. 3(a) of RA 8371 merely defines the coverage of
uses other than the development of water ancestral domains, and describes the extent, limit and
power,” for which “beneficial use may be the composition of ancestral domains by setting forth the
measure and the limit of the grant.” standards and guidelines in determining whether a
particular area is to be considered as part of and within
4. The use and enjoyment of marine wealth of the the ancestral domains.
archipelagic waters, territorial sea, and exclusive
economic zone shall be reserved for Filipino Sec. 5 in relation to Sec. 3(a) cannot be construed as a
citizens. source of ownership rights of indigenous peoples over
the natural resources simply because it recognizes

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ancestral domains as their “private but community GR: Filipino citizens or entities with 60%
property.” capitalization owned by Filipino citizens.

Further, Sec. 7 makes no mention of any right of XPN: For large-scale EDU of minerals, petroleum
ownership of the indigenous peoples over the natural and other mineral oils, the President may enter into
resources. In fact, Sec. 7(a) merely recognizes the “right agreements with foreign-owned corporations
to claim ownership over lands, bodies of water involving technical or financial agreements only.
traditionally and actually occupied by indigenous (1987 Constitution, Art. XII, Sec. 2)
peoples, sacred places, traditional hunting and fishing
grounds, and all improvements made by them at any State may also directly exploit its natural
time within the domains.” Neither does Sec. 7(b), which resources in either of two ways:
enumerates certain rights of the indigenous peoples over
the natural resources found within their ancestral a. State may set up its own company to
domains, contain any recognition of ownership vis-à- engage in the exploitation of natural
vis the natural resources. (Separate Opinion, Kapunan, J., resources.
in Cruz v. Sec. of DENR, G.R. No. 135385, Dec. 6, 2000) b. State may enter into a financial or
technical assistance agreement (“FTAA”)
Coverage of the IPRA with private companies who act as
contractors of the State. (La Bugal-B’laan v.
1. Protection of the indigenous peoples’ rights and DENR Sec., G.R. No. 127882, Dec. 1, 2004)
welfare in relation to the natural resources found
within their ancestral domains, 2. Use and enjoyment of nation’s marine wealth within
2. Preservation of the ecological balance the territory: Exclusively for Filipino citizens; (1987
3. Ensure that the indigenous peoples will not be Constitution, Art. XII, Sec. 2)
unduly displaced when the State-approved activities 3. Alienable lands of the public domain:
involving the natural resources located therein are a. Only Filipino citizens may acquire not more
undertaken. (Separate Opinion, Kapunan, J., in Cruz v. than 12 hectares by purchase, homestead or
Sec. of DENR, ibid.) grant, or lease not more than 500 hectares.
b. Private corporations may lease not more than
A property granted to a state university, although 1000 hectares for 25 years renewable for
within the ancestral domains, cannot be distributed another 25 years; (1987 Constitution, Art. XII,
to indigenous peoples and cultural communities. Sec. 3)
4. Certain areas of investment: reserved for Filipino
The lands by their character have become inalienable citizens or entities with 60% owned by Filipinos,
from the moment President Garcia dedicated them for although Congress may provide for higher
the state university’s use in scientific and technological percentage; (1987 Constitution, Art. XII, Sec. 10)
research in the field of agriculture. They have ceased to 5. In the Grant of rights, privileges and concessions
be alienable public lands. When Congress enacted the covering the national economy and patrimony, State
IPRA in 1997, it provided in Sec. 56 that "property rights shall give preference to qualified Filipinos; and
within the ancestral domains already existing and/or (1987 Constitution, Art. XII, Sec. 10)
vested" upon its effectivity "shall be recognized and 6. Franchise, certificate or any other form of
respected." In this case, ownership over the subject lands authorization for the operation of a public utility;
had been vested in the state university as early as 1958. only to Filipino citizens or entities with 60% owned
Consequently, transferring the lands in 2003 to the by Filipinos. (1987 Constitution, Art. XII, Sec. 11)
indigenous peoples around the area is not in accord with
the IPRA. (CMU v. Exec. Sec., G.R.No.184869, Sept. 21, NOTE: Such franchise, etc., shall neither be
2010) exclusive, nor, for a period longer than 50 years, and
subject to amendment, alteration or repeal by
Stewardship Doctrine Congress. All executive and managing officers must
be Filipino citizens.
Private property is supposed to be held by the individual
only as a trustee for the people in general, who are its ---
real owners. Q: President Estrada signed into law RA 8762, also
known as the Retail Trade Liberalization Act of 2000.
NATIONALIST AND CITIZENSHIP REQUIREMENT It expressly repealed R.A. 1180, which absolutely
PROVISION prohibited foreign nationals from engaging in the
retail trade business. R.A. 8762 now allows them to
Filipinized activities as provided in Art. XII of the do under special categories. Several members of the
Constitution House of Representatives, filed a petition assailing
the constitutionality of RA 8762. They mainly argue
1. Co-production, joint venture or production sharing that it violates the mandate of the 1987 Constitution
agreement for exploration, development and for the State to develop a self-reliant and
utilization (EDU) of natural resources: independent national economy effectively controlled
by Filipinos. Is the Retail Trade Liberalization Act of
2000 constitutional?

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 NATIONAL ECONOMY AND PATRIMONY
2. Co-production, joint venture, or production sharing
A: YES. While Sec. 19, Art. II of the 1987 Constitution agreements with the State and all under the full
requires the development of a self-reliant and control and supervision of the State. (Miners
independent national economy effectively controlled by Association v. Factoran, G.R. No. 98332, Jan. 16, 1995)
Filipino entrepreneurs, it does not impose a policy of
Filipino monopoly of the economic environment. NOTE: However, as to marine wealth, only Filipino
Objective: simply to prohibit foreign powers or interests citizens are qualified. This is also true of natural
from maneuvering our economic policies and ensure that resources in rivers, bays, lakes and lagoons, but with
Filipinos are given preference in all areas of allowance for cooperatives. (1987 Constitution, Art. XII,
development. It does not rule out the entry of foreign Sec. 2, pars. 2 and 3)
investments, goods, and services. While it does not
encourage their unlimited entry into the country, it does Control Test and Grandfather Rule (2015 Bar)
not prohibit them either. In fact, it allows an exchange on
the basis of equality and reciprocity, frowning only on In Narra Nickel Mining and Development Corporation v.
foreign competition that is unfair. (Espina v. Zamora, G.R. Redmont Consolidated Mines Corpoation, G.R. No. 195580,
No. 143855, Sept. 21, 2010) January 28, 2015 (Resolution), these two tests were
--- discussed by the Supreme Court in determining whether
or not Narra Nickel Mining and Development
An alien may not acquire property by virtue of a Corporation Tesoro Mining and Development, Inc., and
purchase made by him and his Filipino wife (1994, McArthur Mining, Inc. complied with the Filipino
1998, 2002, 2009 Bar) ownership requirement, thus, entitled to Mineral
Production Sharing Agreements (MPSAs).
The fundamental law prohibits the sale to aliens of
residential land. Sec. 7, Art. XII ordains that, "Save in Control Test Grandfather Rule
cases of hereditary succession, no private land shall be
transferred or conveyed except to individuals, Also known as the “liberal The method by which the
corporations, or associations qualified to acquire or hold test”; This provides that percentage of Filipino
lands of the public domain." Thus, assuming that it was shares belonging to equity in a corporation is
his intention that the lot in question be purchased by corporations or computed, in cases where
him and his wife, he acquired no right whatever over the partnerships at least 60% corporate shareholders
property by virtue of that purchase; and in attempting to of the capital of which is are present, by attributing
acquire a right or interest in land, vicariously and owned by Filipino citizens the nationality of the
clandestinely, he knowingly violated the Constitution; shall be considered of second or even subsequent
the sale as to him was null and void. Philippine nationality. tier of ownership to
determine the nationality
He had and has no capacity or personality to question This does not scrutinize of the corporate
the subsequent sale of the same property by his wife on further the ownership of shareholder.
the theory that in so doing he is merely exercising the the Filipino shareholdings.
prerogative of a husband in respect of conjugal property. Thus, to arrive at the
To sustain such a theory would permit indirect actual Filipino ownership
controversion of the constitutional prohibition. If the and control in a
property were to be declared conjugal, this would accord corporation, both the
to the alien husband a not insubstantial interest and direct and indirect
right over land, as he would then have a decisive vote as shareholdings in the
to its transfer or disposition. This is a right that the corporation are
Constitution does not permit him to have. (Cheeseman v. determined.
IAC, G.R. No. 74833, Jan. 21, 1991)
Primary test (but it Applies only when
EXPLORATION, DEVELOPMENT AND UTILIZATION OF may be combined the 60-40 Filipino-
NATURAL RESOURCES with the Grandfather foreign ownership is
Rule) in doubt or where
Exploration, development and utilization of natural there is reason to
resources (2015 Bar) believe that there is
non-compliance with
Only Filipino citizens and corporations or associations at the provisions of the
least sixty percent (60%) of whose capital is owned by Constitution on the
Filipino citizens are qualified to take part in exploration, nationality
development and utilization of natural resources. (1987 restriction.
Constitution, Art. XII, Sec. 2)

Since natural resources, except agricultural resources

that cannot be alienated, they can be explored,
developed, or utilized by:
1. Direct undertaking of activities by the State

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 POLITICAL LAW
NOTE: “Doubt” - does not refer to the fact that the FRANCHISES, AUTHORITY AND CERTIFICATES FOR
apparent Filipino ownership of the corporation’s equity PUBLIC UTILITIES
falls below the 60% threshold. Rather, it refers to various
indicia that the "beneficial ownership" and "control" of Public Utility
the corporation do not in fact reside in Filipino
shareholders but in foreign stakeholders. A business or service engaged in regularly supplying the
public with some commodity or service of public
Circumstances that compelled the application of the consequence, such as electricity, gas, water,
Grandfather Rule in Narra Nickel Mining v. Redmont transportation, telephone or telegraph service. To
Consolidated Mines constitute a public utility, the facility must be necessary
for the maintenance of life and occupation of the
1. The three mining corporations had the same 100% residents. As the name indicates, “public utility” implies
Canadian owned foreign investor; public use and service to the public. (J.G. Summit v. CA
2. The similar corporate structure and shareholder G.R. No. 124293, Sept. 24, 2003)
composition of the three corporations;
3. A major Filipino shareholder within the corporate Public utilities are privately owned and operated
layering did not pay any amount with respect to its businesses whose services are essential to the general
subscription; and public. They are enterprises which specially cater to the
4. The dubious act of the foreign investor in conveying needs of the public and conduce to their comfort and
its interests in the mining corporations to another convenience. As such, public utility services are
domestic corporation. impressed with public interest and concern. (Kilusang
Mayo Uno Labor Center v. Garcia, Jr., G.R. No. 115381, Dec.
NOTE: Corporate layering is valid insofar as it does not 23, 1994)
intend to circumvent the Filipino ownership
requirement of the Constitution. (Narra Nickel Mining Operation of a public utility
and Development Corporation v. Redmont Consolidated
Mines Corpoation, G.R. No. 195580, April 21, 2014) Only Filipino citizens or corporations at least 60% of
whose capital is Filipino owned are qualified to acquire a
Validity of service contract entered into by the State franchise, certificate or any other form of authorization.
with a foreign-owned corporation (1987 Constitution, Art. XII, Sec. 11)

Subject to the strict limitations in the last two Franchise requirement before one can operate a
paragraphs of Sec. 2 Art. XII, financial and technical public utility (1994 Bar)
agreements are a form of service contract. Such service
contacts may be entered into only with respect to The Constitution, in no uncertain terms, requires a
minerals, petroleum, and other mineral oils. The grant of franchise for the operation of a public utility. However, it
such service contracts is subject to several safeguards, does not require a franchise before one can own the
among them: facilities needed to operate a public utility so long as it
does not operate them to serve the public.
1. That the service contract be crafted in
accordance with a general law setting Sec. 11, Art. XII provides that, “No franchise, certificate or
standard of uniform terms, conditions and any other form of authorization for the operation of a
requirements; public utility shall be granted except to citizens of the
Ratio: To attain certain uniformity in Philippines or to corporations or associations organized
provisions and avoid the possible under the laws of the Philippines at least 60% of whose
insertion of terms disadvantageous to capital is owned by such citizens, nor shall such
the country. franchise, certificate or authorization be exclusive
2. President be the signatory for the character or for a longer period than 50 years…” (Tatad
government; and v. Garcia, G.R. No. 114222, April 6, 1995)
Ratio: Before an agreement is
presented to the President for NOTE: A shipyard is not a public utility. Its nature
signature, it will have been vetted dictates that it serves but a limited clientele whom it may
several times over at different levels choose to serve at its discretion. It has no legal obligation
to ensure that it conforms to law and to render the services sought by each and every client.
can withstand public scrutiny. (J.G. Summit v. CA, G.R. No. 124293, Sept. 24, 2003)
3. President reports the executed agreement to
Congress within 30 days. Exclusivity of a public utility franchise
Ratio: To give that branch of
government an opportunity to look A franchise to operate a public utility is not an exclusive
over the agreement and interpose private property of the franchisee. Under the
timely objections, if any. (La Constitution, no franchisee can demand or acquire
BugalB’laan v. DENR, G.R. No. 127882, exclusivity in the operation of a public utility. Thus, a
Dec. 1, 2004) franchisee cannot complain of seizure or taking of
property because of the issuance of another franchise to

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 NATIONAL ECONOMY AND PATRIMONY
a competitor. (Pilipino Telephone Corp. v. NRC, G.R. No. 1. Advertising- 70% of their capital must be
138295, 2003) owned by Filipino citizens. [Art. XVI, Sec. 1(2)]
2. Mass Media- must be wholly owned by Filipino
NOTE: SC said that Congress does not have the exclusive citizens. [Art. XVI, Sec. 11(1)]
power to issue such authorization. Administrative 3. Educational institutions- 60% of their capital
bodies, e.g. LTFRB, ERB, etc., may be empowered to do must be owned by Filipino citizens. [Art. XVI,
so. Franchises issued by Congress are not required Sec. 4(2)]
before each and every public utility may operate (Albano
v. Reyes, G.R. No. 83551, July 11, 1989). The law has Interpretation of the term “capital” as used in Sec.
granted certain administrative agencies the power to 11, Art. XII in determining compliance with the
grant licenses for or to authorize the operation of certain ownership requirement
public utilities. (See EO nos. 172 and 202)
Refers only to shares of stock entitled to vote in the
Delegation of authority to grant franchises or similar election of directors, and only to common shares and not
authorizations by the Congress to the total outstanding capital stock comprising both
common and non-voting preferred shares.
Under the Constitution, Congress has an explicit
authority to grant a public utility franchise. However, it Considering that common shares have voting rights
may validly delegate its legislative authority, under the which translate to control, as opposed to preferred
power of subordinate legislation, to issue franchises of shares which usually have no voting rights, the term
certain public utilities to some administrative agencies. "capital" in Sec. 11, Art. XII of the Constitution refers only
(Francisco v. Toll Regulatory Board, G.R No. 183599, to common shares. However, if the preferred shares also
October 19, 2010) have the right to vote in the election of directors, then
the term "capital" shall include such preferred shares
It is generally recognized that a franchise may be derived because the right to participate in the control or
indirectly from the state through a duly designated management of the corporation is exercised through the
agency, and to this extent, the power to grant franchises right to vote in the election of directors. In short, the
has frequently been delegated, even to agencies other term "capital" in Sec. 11, Art. XII of the Constitution
than those of a legislative nature. In pursuance of this, it refers only to shares of stock that can vote in the election
has been held that privileges conferred by grant by local of directors. (Gamboa v. Sec. of Finance, G.R. No. 176579,
authorities as agents for the state constitute as much a June 28, 2011)
legislative franchise as though the grant had been made
by an act of the Legislature. It is thus clear that Congress NOTE: The Constitution expressly declares as State
does not have the sole authority to grant franchises for policy the development of an economy “effectively
the operation of public utilities. (Hontiveros-Baraquel v. controlled” by Filipinos. Consistent with such State
Toll Regulatory Board, G.R. No. 181293, Feb. 23, 2015) policy, the Constitution explicitly reserves the ownership
and operation of public utilities to Philippine nationals,
The government can modify a radio or television who are defined in the Foreign Investments Act of 1991
franchise to grant free airtime to COMELEC. as Filipino citizens, or corporations or associations at
least 60% of whose capital with voting rights belongs to
All broadcasting, whether by radio or television stations, Filipinos. (Gamboa v. Sec. of Finance, ibid.)
is licensed by the Government. Radio and television
companies do not own the airwaves and frequencies; Temporary Take-over of the state of a business
they are merely given temporary privilege of using them. affected with public interest
A franchise is a privilege subject to amendment, and the
provision of BP 881 granting free airtime to the The State may take over or direct the operation of any
COMELEC is an amendment of the franchise of radio and privately owned public utility or business affected with
television stations. (TELEBAP v. COMELEC, G.R. No. public interest. (1987 Constitution, Art. XII, Sec. 17)
132922, April 21, 1998)
Requisites for the State to temporarily take over a
Foreigners who own substantial stockholdings in a business affected with public interest (2006 Bar)
corporation, engaged in the advertising industry,
cannot sit as a treasurer of said corporation. 1. There is national emergency;
2. The public interest so requires; and
A treasurer is an executive or a managing officer. Sec. 3. Under reasonable terms prescribed by it.
11(2), Art. XVI provides that the participation of the (1987 Constitution, Art. XII, Sec. 17)
foreign investors in the governing bodies of entities shall
be limited to their proportionate share in the capital
thereof, and all the officers of such entities must be ACQUISITION, OWNERSHIP AND TRANSFER OF
citizens of the Philippines. (Bar examination in Political PUBLIC PRIVATE LANDS
Law, 1989)
Imperium vs. Dominium
Ownership requirement
Imperium Dominium

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265 FACULTY OF CIVIL LAW
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Government authority The capacity of the State
possessed by the State to own and acquire
which is appropriately property. It refers to Disposition of private lands
embraced in sovereignty. lands held by the
government in GR: No private land shall be transferred or conveyed
proprietary character. except to individuals, corporations or associations
qualified to acquire or hold lands of the public land.
(1987 Constitution, Art. XII, Sec. 7)
Classification of lands of public domain
(1990, 1992, 1997, 1998, 2001, 2003, 2004 Bar) XPNs:
1. Foreigners who inherit through intestate
1. Agricultural succession;
2. Forest or timber 2. Former natural-born citizen may be a transferee of
3. Mineral lands private lands subject to limitations provided by law.
4. National parks. (1987 Constitution, Art. XII, Sec. 3) (1987 Constitution, Art. XII, Sec 8)
3. Ownership in condominium units; and
Private lands 4. Parity right agreement, under the 1935
Constitution.
Any land of private ownership. This includes both lands
owned by private individuals and lands which are A natural born citizen of the Philippines who has lost
patrimonial property of the State or municipal his Philippine citizenship may be a transferee of
corporations. (Bernas, 1995). private lands (1995, 1998, 2000, 2009 Bar)

Conversion: Subject to the limitations imposed by law. Thus, even if

private respondents were already Canadians when they
1. Public domain to private land- when it is acquired applied for registration of the properties in question,
from the government either by purchase or by grant there could be no legal impediment for the registration
(Oh Cho v. Director of Lands, G.R. No. 48321, Aug. 31, thereof, considering that it is undisputed that they were
1946). formerly natural-born citizens. (Republic v. CA, G.R. No.
108998, Aug. 24, 1984)
Requirement: There must be a positive act from
the government; mere issuance of title is not A religious corporation is qualified to have lands in
enough. (Sunbeam v. CA, G.R. No. 50464, Jan. 29, the Philippines on which it may build its church and
1990) make other improvements

2. Public land to private land thru prescription- The Constitution makes no exception in favor of religious
Such open, continuous, exclusive and notorious associations. The mere fact that a corporation is religious
occupation of the disputed properties for more than does not entitle it to own public land. Land tenure is not
30 years must be conclusively established. Purpose indispensable to the free exercise and enjoyment of
of quantum of proof: to avoid erroneous validation religious profession of worship. The religious
of actually fictitious claims or possession over the corporation can own private land only if it is at least 60%
property in dispute. Effect: creates the legal fiction owned by Filipino citizens. (Register of Deeds v. Ung Siu Si
whereby the land, upon completion of the requisite Temple, G.R No. L-6776, May 21, 1955)
period ipso-jure and without the need of judicial or
other sanction, ceases to be public land and Qualification of corporation sole to purchase or own
becomes private property. (San Miguel Corp. v. CA, lands in the Philippines
GR No. 57667, May 28, 1990)
Sec. 113, BP Blg. 68 states that any corporation sole may
3. Alienable public land to private land- Alienable purchase and hold real estate and personal property for
public land held by a possessor, personally or its church, charitable, benevolent or educational
through his predecessors-in-interest, openly, purposes, and may receive bequests or gifts for such
continuously and exclusively for 30 years (under purposes. There is no doubt that a corporation sole by
The Public Land Act, as amended) is converted to the nature of its Incorporation is vested with the right to
private property by the mere lapse or completion of purchase and hold real estate and personal property. It
said period, ipso jure. The land ipso jure ceases to be need not therefore be treated as an ordinary private
of the public domain and becomes private property. corporation because whether or not it be so treated as
(Dir. of Lands v. IAC, G.R. No. 73002, Dec. 29, 1986) such, the Constitutional provision involved will,
nevertheless, be not applicable. (Rep. v. IAC., G.R. No.
What is required by law is open, continuous, exclusive, 75042, November 29, 1988)
and notorious possession and occupation under a bona
fide claim of ownership: Lease of private lands by religious corporations

1. For 10 years, if the possession is in good faith Under Sec. 1 of PD 471, corporations and associations
2. For 30 years if it is in bad faith. (Republic v. owned by aliens are allowed to lease private lands up to
Enciso, G.R. No. 160145, Nov. 11, 2005) 25 years, renewable for a period of 25 years upon the

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 NATIONAL ECONOMY AND PATRIMONY
agreement of the lessor and the lessee. Hence, even if the must be made upon reaching the age of majority.
religious corporation is owned by aliens, it may still lease Ching validly elect Philippine citizenship fourteen
private lands. (14) years after he has reached the age of majority.
Can Ching be admitted to the Philippine bar?
PRACTICE OF PROFESSION
A: NO. Ching, despite the special circumstances, failed to
State policy on professionals and skilled workers elect Philippine citizenship within a reasonable time. The
reasonable time means that the election should be made
The sustained development of a reservoir of national within 3 years from "upon reaching the age of majority",
talents consisting of Filipino scientists, entrepreneurs, which is 21 years old. Instead, he elected Philippine
professionals, managers, high-level technical manpower citizenship 14 years after reaching the age of majority
and skilled workers and craftsmen in all fields shall be which the court considered not within the reasonable
promoted by the State. [1987 Constitution, Art. XII, Sec. time. Philippine citizenship can never be treated like a
14(1)] commodity that can be claimed when needed and
suppressed when convenient. The Court resolves to deny
Practice of profession in the Philippines Ching's application for admission to the Philippine Bar.
(Re: Application for admission to the Philippine Bar v.
GR: The practice of all professions in the Philippines Ching, B.M. No. 914, Oct. 1, 1999)
shall be limited to Filipino citizens. ---
XPN: In cases provided by law. [1987 Constitution, Art. ---
XII, Sec. 14(2)] Q: After the PRC released the names of successful
examinees in the Medical Licensure Examination, the
Regulation of profession or occupation Board of Medicine observed that the grades of the 79
successfully examinees of Fatima College of Medicine
The power to regulate the exercise of a profession or were unusually and exceptionally high in the two (2)
pursuit of an occupation cannot be exercised by the State most difficult subjects of the exam, i.e., Biochemistry
or its agents in an arbitrary, despotic or oppressive and Obstetrics and Gynecology. The
manner. (Board of Med. v. Yasuyuki Ota, GR No. 166097, NBI Investigation found that the Fatima examinees
July 14, 2008) gained early access to the test questions. The
issuance of license to practice was not automatically
NOTE: Since Filipino citizenship is a requirement for granted to the successful examinees. Respondents
admission to the bar, loss thereof terminates counter that having passed the 1993 licensure
membership in the Philippine bar and, consequently, the examinations for physicians, the PRC has the
privilege to engage in the practice of law. The practice of obligation to administer to them the oath of
law is a privilege denied to foreigners. physicians and to issue their certificates of
registration as physicians. Are the respondents
XPN: when Filipino citizenship is lost by reason of correct?
naturalization as a citizen of another country but
subsequently reacquired pursuant to RA 9225. A: NO. It is long established rule that a license to practice
medicine is a privilege or franchise granted by the
Reason: all Philippine citizens who become citizens of government. It must be stressed, nevertheless, that the
another country shall be deemed not to have lost their power to regulate the exercise of a profession or pursuit
Philippine citizenship under the conditions of RA 9225. of an occupation cannot be exercised by the State or its
agents in an arbitrary, despotic, or oppressive manner. A
Thus, a Filipino lawyer who becomes a citizen of another political body that regulates the exercise of a particular
country is deemed never to have lost his Filipino privilege has the authority to both forbid and grant such
citizenship if he reacquires it in accordance with RA privilege in accordance with certain conditions. Such
9225. Although he is also deemed never to have conditions may not, however, require giving up ones
terminated his membership in the Philippine bar, no constitutional rights as a condition to acquiring the
automatic right to resume law practice accrues. (Petition license. Verily, to be granted the privilege to practice
for leave to resume practice of law, Dacanay, B.M. No. medicine, the applicant must show that he possesses all
1678, Dec. 17, 2007) the qualifications and none of the disqualifications. (PRC
v. De Guzman, G.R. No. 144681, June 21, 2004)
--- ---
Q: Ching a legitimate child born under the 1935
Constitution of a Filipino mother and an alien father, ORGANIZATION AND REGULATION OF
was one of the successful Bar examinees. The oath CORPORATIONS, PRIVATE AND PUBLIC
taking of the successful Bar examinees was
scheduled on 5 May 1999. However, because of the Organization and Regulation of Corporations
questionable status of Ching's citizenship, he was not
allowed to take his oath. OSG clarifies that 2 Its purpose is to prevent the pressure of special interests
conditions must concur in order that the election of upon the lawmaking body in the creation of corporations
Philippine citizenship may be effective, namely: (a) or in the regulation of the same. To permit the
the mother of the person making the election must lawmaking body by special law to provide for the
be a citizen of the Philippines; and (b) said election organization, formation or regulation of private

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 POLITICAL LAW
corporations would be in effect to offer to it the Essence of the provision
temptation in many cases to favor certain groups to the
prejudice of others or to the prejudice of the interests of Sec. 19 is anti-trust in history and spirit. Only
the country. (Philippine Society for the Prevention of competition which is fair can release the creative forces
Cruelty to Animals v. COA, G.R No. 169752, Sept. 25, 2007) of the market. Competition is thus the underlying
principle of Section 19, Article XII.
Creation of GOCC by Congress
The objective of anti-trust law is ‘to assure a competitive
GOCC may be created or established by special charters economy based upon the belief that through
in the interest of the common good and subject to the competition, producers will strive to satisfy consumer
test of economic viability. (1987 Constitution, Art. XII, Sec wants at the lowest price with the sacrifice of the fewest
16) resources. Additionally, there is reliance upon “the
operation of the ‘market’ system (free enterprise) to
NOTE: Congress, however, may not create a corporation decide what shall be produced, how resources shall be
whose purpose is to compete with a private corporation. allocated in the production process, and to whom
various products will be distributed. The market system
In the interest of the public good and subject to the relies on the consumer to decide what and how much
test of economic viability’ meaning shall be produced, and on competition, among producers
who will manufacture it. (Energy Regulatory Board v. CA
GOCC must show capacity to function efficiently in G.R. No. 113079, April 20, 2001)
business and that they should not go into activities which
the private sector can do better. Moreover, economic Regulation of monopolies
viability is more than financial viability but also included
capability to make profit and generate benefits not Monopolies are not per se prohibited by the Constitution.
quantifiable in financial terms. It may be permitted to exist to aid the government in
carrying on an enterprise or to aid in the interest of the
NOTE: See discussion of GOCC under Public Corporations. public. However, because monopolies are subject to
abuses that can inflict severe prejudice to the public,
they are subjected to a higher level of State regulation
MONOPOLIES, RESTRAINT OF TRADE AND UNFAIR than an ordinary business undertaking. (Agan, Jr. v.
COMPETITION PIATCO, G.R. No. 155001, May 5, 2003)

Monopoly Allowance of contracts requiring exclusivity

A privilege or peculiar advantage vested in one or more Contracts requiring exclusivity are not per se void. Each
persons or companies, consisting in the exclusive right contract must be viewed vis-à-vis all the circumstances
(or power) to carry on a particular business or trade, surrounding such agreement in deciding whether a
manufacture a particular article, or control the sale of a restrictive practice should be prohibited as imposing an
particular commodity. (Agan, Jr. v. PIATCO, G.R. No. unreasonable restraint on competition. (Avon v. Luna,
155001, May 5, 2003) G.R. No. 153674, Dec. 20, 2006)

State policy regarding monopolies Free enterprise clause vs. Police Power of the State

The State shall regulate or prohibit monopolies when the Although the Constitution enshrines free enterprise as a
public interest so requires. No combination in restraint policy, it nevertheless reserves to the Government the
of trade or unfair competition shall be allowed. (1987 power to intervene whenever necessary for the
Constitution, Art. XII, Sec. 16) promotion of the general welfare, as reflected in Secs. 6
and 19 of Art. XII. (Assoc. of Phil. Coconut Desiccators v.
Test on whether there is unlawful machination or Phil. Coconut Authority, G.R. No. 110526, Feb. 10, 1998)
combination in restraint of trade
PHILIPPINE COMPETITION ACT (R.A. 10667)
Whether under the particular circumstances of the case
and the nature of the particular contract involved, such The law seeks to provide a national competition policy
contract is, or is not, against public policy. (Avon v. Luna, that will promote free and fair competition in economic
G.R. No. 153674, Dec. 20, 2006) activities and protect the consumers.

NOTE: The phrase “unfair foreign competition and trade Philippine Competition Commission (PCC)
practices” is not to be understood in a limited legal and
technical sense, but in the sense of anything that is The Commission is a newly constituted independent
harmful to Philippine enterprises. At the same time, quasi-judicial body mandated to implement the national
however, the intention is not to protect local inefficiency. competition policy, and enforce the Philippine
Nor is the intention to protect local industries from Competition Act.
foreign competition at the expense of the consuming
public.

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 SOCIAL JUSTICE AND HUMAN RIGHTS
Role of the PCC
SOCIAL JUSTICE AND HUMAN RIGHTS
The Commission shall prohibit anti-competitive
agreements, abuses of dominant position, and anti-
competitive mergers and acquisitions. Sound market Goals of social justice under the Constitution
regulation will help foster business innovation, increase
global competitiveness, and expand consumer choices to 1. Equitable diffusion of wealth and political power for
improve public welfare. (PCC, Mission Statement) common good;
2. Regulation of acquisition, ownership, use and
Composition of the PCC disposition of property and its increments; and
3. Creation of economic opportunities based on
The Commission is composed of 1 cabinet secretary-level
freedom of initiative and self-reliance. (1987
Chairman, and 4 Commissioners who will serve for a
Constitution, Art. XIII, Sec. 1 and 2)
term of 7 years, without reappointment and shall enjoy
security of tenure.
CONCEPT OF SOCIAL JUSTICE
Powers and Functions of the PCC
Social justice
1. Conduct inquiry, investigate and hear and decide
It is “neither communism, nor despotism, nor atomism,
case motu proprio or upon verified complaint or
nor anarchy,” but the humanization of laws and the
upon referral of a concerned regulatory agency
equalization of social and economic force by the State so
2. Review proposed mergers and acquisition;
that justice in its rational and objectively secular
3. Monitor compliance;
conception may at least be approximated. Social justice
4. Stop, redress, apply remedies based on findings;
means the promotion of the welfare of all the people, the
5. Issue subpoenas ;
adoption by the Government of measures calculated to
6. Conduct administrative proceedings, impose
insure economic stability of all competent elements of
sanctions, fines or penalties;
society, through the maintenance of a proper economic
7. Issue adjustment or divestiture orders;
and social equilibrium in the interrelations of the
8. Undertake inspection of business premises, under
members of the community, constitutionally, through the
order of court;
adoption of measures legally justifiable, or extra-
9. Deputize enforcement agencies; and
constitutionally, through the exercise of powers
10. Issue advisory opinions on competition matters.
underlying the existence of all governments on the time-
(R.A. 10667, Philippine Competition Act, Sec. 12)
honored principle of salus populi est supreme lex.
(Calalang v. Williams, G.R. No. 47800, Dec. 2, 1940)
Prohibition on the Issuance of Temporary
Two principal activities, which the State is
Restraining Orders, Preliminary Injunctions and
commanded to attend to in order to achieve the goals
Preliminary Mandatory Injunctions
of social justice
Only the Court of Appeals and the Supreme Court may 1. The creation of more economic opportunities and
issue a temporary restraining order, preliminary more wealth; and
injunction or preliminary mandatory injunction against 2. Closer regulation of the acquisition, ownership, use,
the Commission in the exercise of its duties or functions. and disposition of property in order to achieve a
(R.A. 10667, Philippine Competition Act, Sec. 47) more equitable distribution of wealth and power.
---
Aspects of human life covered by Art. XIII
Q: The World Trade Organization (WTO) requires
the Philippines to place nationals and products of
1. Social justice and human rights
member-countries on the same footing as Filipinos
2. Labor
and local products. Does the WTO agreement violate
3. Agrarian and natural resources reform
Art. II Sec. 19 of the Constitution?
4. Urban land reform and housing
5. Health
A: NO. The WTO agreement does not violate Art. II Sec.
6. Women
19, nor Secs. 19 and 12 of Art. XII, because these sections
7. Role and rights of people’s organization
should be read and understood in relation to Secs. 1 and
8. Human rights
13 of Art. XII, which require the pursuit of trade policy
that “serves the general welfare and utilizes all forms
Factors which must be weighed in regulating the
and arrangements of exchange on the basis of equality
relations between workers and employers
and reciprocity”. (Tañada v. Angara, G.R. No. 118295, May
2, 1997)
1. The right of labor to its just share in the fruits of
---
production
2. The right of enterprises to reasonable returns of
investments, and to expansion and growth. [1987
Constitution, Art XIII, Sec. 3, par. (4)]

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COMMISSION ON HUMAN RIGHTS (CHR)
NOTE: It must be remembered, however, that the (1991, 1992, 1997, 2001, 2005, 2007 Bar)
command to promote social justice itself might make it
necessary to tilt the balance in favor of underprivileged Constitutional mandate
workers.
Art. XIII of the 1987 Constitution mandates the Congress
Provisions of the Constitution on women to give highest priority to the enactment of measures
that protect and enhance the right of all people to human
1. The State shall equally protect the life of the mother dignity, reduce social, economic, and political
and the life of the unborn from conception. (1987 inequalities and remove cultural inequities by equitably
Constitution, Art. II, Sec. 12) diffusing wealth and political power for the common
2. The State recognizes the role of women in nation- good.
building, and shall ensure the fundamental equality
before the law of women and men. (1987 Purpose of CHR
Constitution, Art. II, Sec. 14)
3. The State shall protect working women by As an independent national human rights institution, the
providing safe and healthful working conditions, Commission on Human Rights is committed to ensure
taking into account their maternal functions, and the primacy of all human rights to their protection,
such faculties and opportunities that will enhance promotion and fulfillment, on the basis of equality and
their welfare and enable them to realize their full non-discrimination, in particular for those who are
potential in the service of the nation. (1987 marginalized and vulnerable. (CHR Mission)
Constitution, Art. XIII, Sec. 14) (1994, 2000 Bar)
Nature of the CHR
Consultation requirement before urban and rural
dwellers can be relocated From the 1987 Constitution and the Administrative
Code, it is abundantly clear that the CHR is not among
The urban and rural dwellers and the communities the class of Constitutional Commissions. (CHR Employees’
where they are to be relocated must be consulted. Assoc. v. CHR, G.R. No. 155336, Nov. 25, 2004)
Otherwise, there shall be no resettlement. [1987
Constitution, Art. XIII, Sec. 10 (20)] Absence of fiscal autonomy

The CHR, although admittedly a constitutional creation

People’s organizations is, nonetheless, not included in the genus of offices
accorded fiscal autonomy by either constitutional or
Bona fide associations of citizens with demonstrated legislative fiat. (Ibid.)
capacity to promote the public interest and with
identifiable leadership, membership and structure. [1987 Power to investigate
Constitution, Art. XIII, Sec. 15 (2)]
The CHR has the power to investigate all forms of human
Agrarian Reform rights violations involving civil and political rights and
monitor the compliance by the government with
Refers to the redistribution of lands, regardless of crops international treaty obligations on human rights. (1987
or fruits produced, to farmers and regular farmworkers Constitution, Art. XIII, Sec. 18)
who are landless, irrespective of tenurial arrangement,
to include the totality of factors and support services NOTE: In essence, the Commission’s power is only
designed to lift the economic status of the beneficiaries investigative. It has no prosecutorial power. For
and all other arrangements alternative to the physical prosecution, it must rely on the executive department.
redistribution of lands, such as production or profit-
sharing, labor administration, and the distribution of The Constitution clearly and categorically grants to the
shares of stocks, which will allow beneficiaries to receive Commission the power to investigate all forms of human
a just share of the fruits of the lands they work. [R.A. rights violations involving civil and political rights. To
6657, Comprehensive Agrarian Reform Law of 1988, Sec. investigate is not to adjudicate or adjudge. The legal
3(a)] meaning of “investigate” is essentially to follow up step
by step by patient inquiry or observation, to trace or
Right of Retention under Agrarian Reform track; to search into; to examine and inquire into with
care and accuracy; to find out by careful inquisition;
The right of retention is a constitutionally guaranteed examination; the taking of evidence; a legal inquiry. In
right, which is subject to qualification by the legislature. the legal sense, “adjudicate” means to settle in the
It serves to mitigate the effects of compulsory land exercise of judicial authority, to determine finally and
acquisition by balancing the rights of the landowner and “adjudge” means to pass on judicially, to decide, settle or
the tenant and by implementing the doctrine that social decree, or to sentence or condemn. (Cariño v. CHR, G.R.
justice was not meant to perpetrate an injustice against No. 96681, Dec. 2, 1991)
the landowner. (Delfino v. Anasao, G.R. No. 197486,
Sept.10, 2014) ---
Q: Informal settlers and vendors have put up

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 EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS
structures in an area intended for a People's Park, of Power, they have the right to access to justice. Is
which are impeding the flow of traffic in the Mrs. Laude’s contentions correct?
adjoining highway. Mayor Cruz gave notice for the
structures to be removed, and the area vacated A: NO. Failure to meet the 3-day notice rule for filing
within a month, or else, face demolition and motions and to obtain the concurrence of the Public
ejectment. The occupants filed a case with the Prosecutor to move for an interlocutory relief in a
Commission on Human Rights (CHR) to stop the criminal prosecution cannot be excused by general
Mayor's move. The CHR then issued an order to exhortations of human rights. (Laude v. Hon. Ginez-
desist against Mayor Cruz with warning that he Jabalde, G.R. No. 217456, Nov. 24, 2015)
would be held in contempt should he fail to comply ---
with the desistance order. When the allotted time
lapsed, Mayor Cruz caused the demolition and
removal of the structures. Accordingly, the CHR cited
him for contempt. Is the CHR empowered to declare
Mayor Cruz in contempt? Does it have contempt
powers at all?

A: NO. CHR does not possess adjudicative functions and

therefore, on its own, is not empowered to declare
mayor in contempt for issuing the “order to desist”.
However, under the 1987 Constitution, the CHR is
constitutionally authorized, in the exercise of its
investigative functions, to "adopt its operational
guidelines and rules of procedure, and cite for contempt
for violations thereof in accordance with the Rules of
Court." Accordingly, the CHR, in the course of an
investigation, may only cite or hold any person in
contempt and impose the appropriate penalties in
accordance with the procedure and sanctions provided
for in the Rules of Court. (Cariño v. CHR, ibid.)
---

Absence of compulsory powers

It may not issue writs of injunction or restraining orders

against supposed violators of human rights to compel
them to cease and desist from continuing their acts
complained of. (Export Processing Zone Authority v. CHR,
GR No. 101476, April 14, 1992)

Regarding its contempt powers, the CHR is

constitutionally authorized to "adopt its operational
guidelines and rules of procedure, and cite for contempt
for violations thereof in accordance with the Rules of
Court." That power to cite for contempt, however, should
be understood to apply only to violations of its adopted
operational guidelines and rules of procedure essential
to carry out its investigatorial powers. (Simon, Jr. v. CHR,
G.R. No.100150, Jan. 5, 1994)

---
Q: The mother of the late Jennifer Laude filed an
Urgent Motion to Compel the Armed Forces of the
Philippines to Surrender Custody of Accused to the
Olongapo City Jail and a Motion to Allow Media
Coverage. However, for failure to comply with the 3-
day notice rule and due to the absence of the
concurrence of the Public Prosecutor thereto, the
trial judge denied said motions. Mrs. Laude now
imputes grave abuse of discretion on the part of the
trial judge. She argues that her procedural blunders
should be excused on the ground that under the
International Covenant on Civil and Political Rights
and the United Nations Declaration of Basic
Principles of Justice for Victims of Crime and Abuse

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271 FACULTY OF CIVIL LAW
 POLITICAL LAW
engaging in their chosen careers. This regulation
EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, assumes particular pertinence in the field of medicine, in
CULTURE, AND SPORTS order to protect the public from the potentially deadly
effects of incompetence and ignorance. (Professional
(1992, 1993, 1994, 1999, 2003, 2007, 2009, 2010 Regulation Commission v. De Guzman, GR No. 144681,
Bar) June 21, 2004)

Educational institution Aspects of education that are Filipinized

Under the Education Act of 1982, such term refers to 1. Ownership:

schools. The school system is synonymous with formal a. Filipino Citizens; or
education, which "refers to the hierarchically structured b. Corporations or associations where at least
and chronologically graded learnings organized and 60% of the capital is owned by Filipino citizens
provided by the formal school system and for which XPN: Those established by religious
certification is required in order for the learner to groups and mission boards;
progress through the grades or move to the higher 2. Control and administration; and
levels". (Commissioner of Internal Revenue v. CA, G.R. No. 3. Student population. [1987 Constitution, Art. XIV, Sec.
124043, Oct. 14, 1998) 4 (2)]

NOTE: It is settled that the term "educational NOTE: The Congress may increase Filipino equity
institution," when used in laws granting tax exemptions, participation in all educational institutions.
refers to a "school seminary, college or educational
establishment". (Commissioner of Internal Revenue v. CA, Official medium of communication and instruction
ibid) (2007 Bar)

Principal characteristics of education which the State The official languages are Filipino and, until otherwise
must promote and protect provided by law, English. The regional languages are the
auxiliary official languages in the regions and shall serve
1. Quality education; as auxiliary media of instruction therein. Spanish and
2. Affordable education (1987 Constitution, Art. XIV, Arabic shall be promoted on a voluntary and optional
Sec. 1) basis. (1987 Constitution, Art. XIV, Sec. 7)
3. Education that is relevant to the needs of the people
[1987 Constitution, Art. XIV, Sec. 2 (1)] ACADEMIC FREEDOM
(2007, 2013 Bar)
Parens Patriae
Aspects of Academic Freedom
The State has the authority and duty to step in where
parents fail to or are unable to cope with their duties to 1. From the standpoint of the educational institution-
their children. To provide that atmosphere which is most
conducive to speculation, experimentation and
Basis for the requirement that a school or creation;
educational institution must first obtain government 2. From the standpoint of the faculty –
authorization before operating a. Freedom in research and in the publication of
the results, subject to the adequate
Such requirement is based on the State policy that performance of his other academic duties
educational programs and/or operations shall be of good b. Freedom in the classroom in discussing his
quality and, therefore, shall at least satisfy minimum subject less controversial matters which bear
standards with respect to curricula, teaching staff, no relation to the subject
physical plant and facilities and administrative and c. Freedom from institutional censorship or
management viability. (Philippine Merchant Marine discipline, limited by his special position in the
School Inc. v. CA, G.R. No. 112844, June 2, 1995) community
3. From the standpoint of the student – Right to enjoy in
State can regulate the right of a citizen to select a school the guarantee of the Bill of Rights. (Non v.
profession or course of study (1994, 2000, 2008 Bar) Dames, G.R. No. 89317, May 20, 1990)

While it is true that the Court has upheld the Freedoms afforded to educational institutions
constitutional right of every citizen to select a profession relating to its right to determine for itself on
or course of study subject to fair, reasonable and academic grounds
equitable admission and academic requirements, the
exercise of this right may be regulated pursuant to the 1. Who may teach
police power of the State to safeguard health, morals, 2. What may be taught
peace, education, order, safety and general welfare. Thus, 3. How shall it be taught
persons who desire to engage in the learned professions 4. Who may be admitted to study. (Miriam College
requiring scientific or technical knowledge may be Foundation v. CA, G.R. No. 127930, Dec. 15, 2000)
required to take an examination as a prerequisite to

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 EDUCATION, SCIENCE AND TECHNOLOGY, ARTS, CULTURE, AND SPORTS
Limitations on academic freedom UP professors. They expressed dissatisfaction over
Justice Del Castillo’s explanation on how he cited the
1. Police power of the State primary sources of the quoted portions and yet
2. Social Interest of the community arrived at a contrary conclusion to those of the
authors of the articles supposedly plagiarized.
NOTE: Academic freedom of institutions of higher Beyond this, however, the statement bore certain
learning is a freedom granted to “institutions of higher remarks which raise concern for the Court. It reads:
learning” which is thus given a “wide sphere of authority “An extraordinary act of injustice has again been
certainly extending to the choice of students.” If such committed against the brave Filipinas who had
institution of higher learning can decide who can and suffered abuse during a time of war.”
who cannot study in it, it certainly can also determine on
whom it can confer the honor and distinction of being its Thus, the Court, in a Show Cause Resolution, directed
graduates. Thus, a university can validly revoke a degree Dean Leonen, and several other lawyers from UP
or honor it has conferred to a student after graduation Law to show cause, why they should not be
after finding that such degree or honor was obtained disciplined as members of the Bar for violation of
through fraud. (Garcia v. Faculty Admission Committee, Canons 1, 11 and 13 and Rules 1.02 and 11.05 of the
Loyola School of Theology, G.R. No. L-40779, Nov. 28, Code of Professional Responsibility.
1975)
1. Does the Show Cause Resolution deny
This freedom of a university does not terminate upon the respondents their freedom of
“graduation” of a student, for it is precisely the expression?
“graduation” of such a student that is in question. An 2. Does the Show Cause Resolution violate
institution of higher learning cannot be powerless if it respondents’ academic freedom as law
discovers that an academic degree it has conferred is not professors?
rightfully deserved. The pursuit of academic excellence A:
is the university’s concern. It should be empowered, as 1. NO. A reading of the Show Cause Resolution will
an act of self-defense, to take measures to protect itself plainly show that it was neither the fact that
from serious threats to its integrity. (UP Board of Regents respondents had criticized a decision of the Court
v. CA, G.R. No. 134625, Aug. 31, 1999) nor that they had charged one of its members of
plagiarism that motivated the said Resolution. It
--- was the manner of the criticism and the
Q: Juan delos Santos, et al., students of De La Salle contumacious language by which respondents, who
University (DLSU) and College of Saint Benilde are are neither parties nor counsels in the Vinuya case,
members of the “Domingo Lux Fraternity”. They have expressed their opinion in favor of the
lodged a complaint with the Discipline Board of petitioners in the said pending case for the "proper
DLSU charging Alvin Aguilar, et al. of Tau Gamma Phi disposition" and consideration of the Court that
Fraternity with “direct assault” because of their gave rise to said Resolution. The Show Cause
involvement in an offensive action causing injuries Resolution painstakingly enumerated the
to the complainants, which were the result of a statements that the Court considered excessive and
fraternity war. The DLSU-CSB Joint Discipline Board uncalled for under the circumstances surrounding
found Aguilar et al. guilty and were meted the the issuance, publication, and later submission to
penalty of automatic expulsion. Was DLSU within its this Court of the UP Law faculty’s Restoring
rights in expelling the students? Integrity Statement.

A: NO. It is true that schools have the power to instill 2. No. It is not contested that respondents (UP Law
discipline in their students as subsumed in their professors) are, by law and jurisprudence,
academic freedom This power does not give them the guaranteed academic freedom and undisputably,
untrammeled discretion to impose a penalty which is not they are free to determine what they will teach their
commensurate with the gravity of the misdeed. If the students and how they will teach. As pointed out,
concept of proportionality between the offense there is nothing in the Show Cause Resolution that
committed and the sanction imposed is not followed, an dictates upon respondents the subject matter they
element of arbitrariness intrudes. Thus, the penalty of can teach and the manner of their instruction.
expulsion imposed by DLSU on Aguilar, et al. is Moreover, it is not inconsistent with the principle of
disproportionate to their deeds. (DLSU v. CA, G.R. No. academic freedom for this Court to subject lawyers
127980, Dec. 19, 2007) who teach law to disciplinary action for
--- contumacious conduct and speech, coupled with
--- undue intervention in favor of a party in a pending
Q: The counsel of the losing party in the case of case, without observing proper procedure, even if
Vinuya, et al. v. Exec. Sec filed a Supplemental Motion purportedly done in their capacity as teachers. (RE:
for Reconsideration, in the said Decision, they Letter of the UP Law Faculty, A.M. No. 10-10-4-SC,
posited their charge of plagiarism as one of the March 8, 2011)
grounds for reconsideration of the decision. A ---
statement by the faculty of UP Law on the allegations
of plagiarism and misrepresentation in the SC
entitled “Restoring Integrity” was submitted by the

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Regulatory power of the Education Secretary as to 1. Priority to research and development, invention,
teaching and non-teaching personnel of private innovation, and their utilization; and to science and
schools technology education, training, and services;
2. Support indigenous, appropriate, and self-reliant
The qualifications of teaching and non-teaching scientific and technological capabilities, and their
personnel of private schools, as well as the causes for the application to the country’s productive systems and
termination of their employment, are an integral aspect national life. (1987 Constitution, Art. XIV, Sec. 10)
of the educational system of private schools. It is thus 3. Regulate the transfer and promote the adaptation of
within the authority of the Secretary of Education to technology from all sources for the national benefit.
issue a rule, which provides for the dismissal of teaching (1987 Constitution, Art. XIV, Sec. 12)
and non-teaching personnel of private schools based on 4. Encourage the widest participation of private
their incompetence, inefficiency, or some other groups, local governments, and community-based
disqualification. (Leus v. St. Scholastica’s College organizations in the generation and utilization of
Westgrove, G.R. No. 187226, Jan. 28, 2015) science and technology. (1987 Constitution, Art. XIV,
Sec. 12)
Philippine Military Academy’s(PMA) authority to 5. Protect and secure the exclusive rights of scientists,
impose disciplinary measures inventors, artists, and other gifted citizens to their
intellectual property and creations, particularly
PMA may impose disciplinary measures and punishment, when beneficial to the people, for such period as
as it deems fit and consistent with the peculiar needs of may be provided by law. (1987 Constitution, Art. XIV,
the Academy. Even without express provision of a law, Sec. 13)
the PMA has regulatory authority to administratively
dismiss erring cadets. As an academic institution, the NOTE: The Congress may provide for incentives,
PMA has the inherent right to promulgate reasonable including tax deductions, to encourage private
norms, rules and regulations that it may deem necessary participation in programs of basic and applied scientific
for the maintenance of school discipline, which is research. Scholarships, grants-in-aid, or other forms of
specifically mandated by Sec. 3 (2), Article XIV of the incentives shall be provided to deserving science
1987 Constitution. The PMA has the freedom on who to students, researchers, scientists, inventors,
admit (and, conversely, to expel) given the high degree of technologists, and specially gifted citizens. (1987
discipline and honor expected from its students who are Constitution, Art. XIV, Sec. 11)
to form part of the AFP. The schools’ power to instill
discipline in their students is subsumed in their ARTS AND CULTURE
academic freedom and that “the establishment of rules
governing university-student relations, particularly All the country’s artistic and historic wealth constitutes
those pertaining to student discipline, may be regarded the cultural treasure of the nation and shall be under the
as vital, not merely to the smooth and efficient operation protection of the State which may regulate its
of the institution, but to its very survival. The dismissal disposition. (1987 Constitution, Art. XIV, Sec. 16)
of Cudia from the PMA due to being 2 minutes late for a
class was affirmed. (Cudia v. PMA, G.R. No. 211362, Principal characteristics of arts and culture which
February 24, 2015) the State must promote and protect

It must be borne in mind that schools are established, 1. Foster the preservation, enrichment, and dynamic
not merely to develop the intellect and skills of the evolution of a Filipino national culture. (1987
studentry, but to inculcate lofty values, ideals and Constitution, Art. XIV, Sec. 14)
attitudes of the total man. Under the rubric of "right to
education," students have a concomitant duty to learn NOTE: It must be based on the principle of unity in
under the rules laid down by the school. Hence, as the diversity in a climate of free artistic and intellectual
primary training and educational institution of the AFP, expression.
the PMA certainly has the right to invoke academic
freedom in the enforcement of its internal rules and 2. The State shall conserve, promote, and popularize
regulations, which are the Honor Code and the Honor the nation’s historical and cultural heritage and
System. The Honor Code is a set of basic and resources, as well as artistic creations. (1987
fundamental ethical and moral principle. It is the Constitution , Art. XIV, Sec. 15)
minimum standard for cadet behavior and serves as the
guiding spirit behind each cadet's action. Throughout a NOTE: Arts and letters shall enjoy the patronage of
cadet's stay in the PMA, he or she is absolutely bound the State.
thereto. (Cudia v. PMA, ibid.)
---
Q: DMCI Project Developers, Inc. (DMCI-PDI)
SCIENCE AND TECHNOLOGY
acquired a 7,716.60-square meter lot in the City of
(1992, 1994 Bar)
Manila for the construction of the Torre de Manila
condominium project, a 49-storey building looming
Principal characteristics of science and technology
at the back of the Rizal Monument in Luneta Park.
which the State must promote and protect
The Knights of Rizal (KoR) filed a Petition for
Injunction against the construction, arguing that it

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will cause the desecration of the Rizal Monument,

which, as a National Treasure, is entitled to full PUBLIC INTERNATIONAL LAW
protection of the law. Are the KoR correct?

A: NO. There is no law prohibiting the construction of

Torre de Manila. Section 15, Article XIV of the FUNDAMENTAL CONCEPTS
Constitution is not self-executory, Congress passed laws
dealing with the preservation and conservation of our
cultural heritage, such as Republic Act No. 10066, or the Public International Law (PIL)
National Cultural Heritage Act of 2009, which empowers
the National Commission for Culture and the Arts and It is a body of legal principles, norms and processes
other cultural agencies to issue a cease and desist order which regulates the relations of States and other
"when the physical integrity of the national cultural international persons and governs their conduct
treasures or important cultural properties [is] found to affecting the interest of the international community as a
be in danger of destruction or significant alteration from whole (Magallona, 2005).
its original state." This law declares that the State should
protect the "physical integrity" of the heritage property Private International Law (PRIL) or Conflicts of Laws
or building if there is "danger of destruction or
significant alteration from its original state." Physical It is that part of law which comes into play when the
integrity refers to the structure itself – how strong and issue before the court affects some fact, event or
sound the structure is. The same law does not mention transaction that is so clearly connected with a foreign
that another project, building, or property, not itself a system of law as to necessitate recourse to that system
heritage property or building, may be the subject of a (Sempio-Diy, Conflict of Laws, 2004 ed., p. 1, citing
cease and desist order when it adversely affects the Cheshire, Private International Law, 1947 ed., p. 6).
background view, vista, or sightline of a heritage
property or building. Thus, Republic Act No. 10066 OBLIGATIONS ERGA OMNES
cannot apply to the Torre de Manila condominium
project. (Knights of Rizal v. DMCI Homes, G.R. No. 213948, An obligation of every State towards the international
Apr. 25, 2017) community as a whole. All states have a legal interest in
--- its compliance, and thus all States are entitled to invoke
responsibility for breach of such an obligation (Case
3. Recognize, respect, and protect the rights of Concerning The Barcelona Traction, ICJ 1970).
indigenous cultural communities to preserve and
develop their cultures, traditions, and institutions. NOTE: Such obligations derive, for example, in
(1987 Constitution, Art. XIV, Sec. 17) contemporary international law, from the outlawing of
acts of aggression, and of genocide, as also from the
NOTE: It shall consider these rights in the principles and rules concerning the basic rights of the
formulation of national plans and policies. human person, including protection from slavery and
racial discrimination. Some of the corresponding rights
4. Ensure equal access to cultural opportunities of protection have entered into the body of general
through the educational system, public or private international law others are conferred by international
cultural entities, scholarships, grants and other instruments of universal or quasi-universal character
incentives, and community cultural centers, and (Romulo v. Vinuya, G.R. No. 162230, April 29, 2010).
other public venues. [1987 Constitution, Art. XIV, Sec.
18(1)] Examples of obligations erga omnes

NOTE: The State shall encourage and support 1. Outlawing of acts of aggression
researches and studies on the arts and culture. 2. Outlawing of genocide
3. Basic human rights
SPORTS 4. Protection from slavery and racial discrimination

The State shall promote physical education and JUS COGENS

encourage sports programs, league competitions, and (1991, 2007, 2008 Bar)
amateur sports, including training for international
competitions, to foster self-discipline, teamwork, and Also referred to as ‘peremptory norm of general
excellence for the development of a healthy and alert international law’
citizenry. [1987 Constitution, Art. XIV, Sec. 19(1)]
Literally means “compelling law”. A norm accepted and
NOTE: All educational institutions shall undertake recognized by the international community of States as a
regular sports activities throughout the country in whole as a norm from which no derogation is permitted
cooperation with athletic clubs and other sectors. [1987 and which can be modified only by a subsequent norm of
Constitution, Art. XIV, Sec.19(2) general international law having the same character
(Vienna Convention on the Law of Treaties, Art. 53).

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Elements of Jus Cogens
Under Art. 38(2) of the Statute of the ICJ, means that a
1. A norm accepted and recognized by international decision may be made ex aequo et bono, i.e. the court
community of states as a whole should decide the case not on legal considerations but
2. No derogation is permitted solely on what is fair and reasonable in the
3. Which can only be modified by a subsequent norm circumstances of the case (equity contra legem).
having the same character However, the parties must expressly authorize the court
to decide a case ex auquo et bono.
Norms Considered as jus cogens in Character
Art. 33 of the United Nations Commission on
1. Laws on genocide International Trade Law’s Arbitration Rules (1976)
2. Principle of self-determination provides that the arbitrators shall consider only the
3. Principle of racial non-discrimination applicable law, unless the arbitral agreement allows the
4. Crimes against humanity arbitrators to consider ex aequo et bono, or amiable
5. Prohibition against slavery and slave trade compositeur.
6. Piracy

Jus Cogens and Rules Creating Erga Omnes INTERNATIONAL AND NATIONAL LAW
Obligations

Jus cogens rules represent the highest source in the Grand divisions of PIL
(informal) hierarchy of sources of international law. The
main difference between a rule of jus cogens and a rule 1. Laws of Peace – Govern normal relations between
that creates an obligation erga omnes is that all jus cogens States in the absence of war.
rules create erga omnes obligations while only some 2. Laws of War – Govern relations between hostile or
rules creating erga omnes obligations are rules of jus belligerent states during wartime.
cogens. 3. Laws of Neutrality – Govern relations between a
non-participant State and a participant State during
Further, with regard to jus cogens obligations the wartime or among non-participating States.
emphasis is on their recognition by the international
community ‘as a whole’, whilst with regard to obligations Monism
erga omnes the emphasis is on their nature. The latter
mentioned embody moral values which are of universal Both international law and domestic law are part of a
validity. They are binding because they express moral single legal order; international law is automatically
absolutes from which no State can claim an exemption incorporated into each nation’s legal system and that
whatever its political, economic and social organization. international law is supreme over domestic law.

The legal consequences of violations or rules creating Dualism

erga omnes obligations differ from those of breach of the
rules of jus cogens in that in addition to the consequences Affirms that the international law and municipal law are
deriving from a breach of erga omnes obligations further distinct and separate; each is supreme in its own sphere
consequences, specified in Article 53 of the Vienna and level of operation.
Convention on the Law of Treaties (VCLT), follow from
violations of the rules of jus cogens. International law vs. Municipal law

NOTE: According to Article 53 of the VCLT, a treaty is BASIS INTERNATIONAL MUNICIPAL LAW
void if, at the time of its conclusion, it conflicts with a LAW
peremptory norm of general international law. For the Adopted by states as Issued by a
purposes of the present Convention, a peremptory norm Enacting
a common rule of political superior
of general international law is a norm accepted and Authority
action for observance
recognized by the international community of States as a Regulates relation of Regulates relations
whole as a norm from which no derogation is permitted state and other of individuals
and which can be modified only by a subsequent norm of Purpose international among themselves
general international law having the same character. persons or with their own
states
EX AEQUO ET BONO Derived principally Consists mainly of
from treaties, enactments from
The concept of ex aequo et bono literally means Source(s) international the lawmaking
“according to the right and good” or “from equity and customs and general authority of each
conscience”. principles of law state
Resolved thru state- Redressed thru
A judgment based on considerations of fairness, not on Remedy in
to-state transactions local
considerations of existing law, that is, to simply decide case of
administrative and
the case based upon a balancing of the equities violation
judicial processes
(Brownlie, 2003).

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Scope of Collective Breach of which lawmaking body and so transformed into municipal law.
Responsibil responsibility entails individual
ity because it attaches responsibility Types of Transformation Theories
directly to the state
and not to its 1. Hard Transformation Theory – Only legislation can
nationals transform International Law into domestic law.
Subject to judicial Not subject to Courts may apply International Law only when
notice before judicial notice authorized by legislation.
international before 2. Soft Transformation Theory – Either a judicial or
tribunals international legislative act of a state can transform International
tribunals (Vienna Law into domestic law.
Role in
Convention on the
Internation Pacta Sunt Servanda (2000 Bar)
Law of Treaties,
al
Art. 27; Permanent
Tribunals International agreements must be performed in good
Court of
International faith. A treaty engagement is not a mere moral obligation
Justice, 1931, Polish but creates a legally binding obligation on the parties. A
Nationals in Danzig state which has contracted a valid international
Case) agreement is bound to make in its legislation such
modification as may be necessary to ensure fulfillment of
Doctrine of Incorporation the obligation undertaken.

It means that the rules of international law form part of Principle of Auto-Limitation (2006 Bar)
the law of the land and no further legislative action is
needed to make such rules applicable in the domestic Any State may by its consent, express or implied, submit
sphere. to a restriction of its sovereign rights. There may thus
be a curtailment of what otherwise is a plenary power
The fact that international law has been made part of the (Reagan v. CIR, G.R. No. L-26379, Dec. 27, 1969).
law of the land does not by any means imply the primacy
of international law over national law in the municipal NOTE: While sovereignty has traditionally been deemed
sphere. Under the doctrine of incorporation as applied in absolute and all-encompassing on the domestic level, it is
most countries, rules of international law are given a however subject to restrictions and limitations
standing equal, not superior, to national legislative voluntarily agreed to by the Philippines, expressly or
enactments (Salonga and Yap, Public International Law, impliedly, as a member of the family of nations. By the
Fourth ed., 1974, p. 16) doctrine of incorporation, the country is bound by
generally accepted principles of international law, which
NOTE: Under this doctrine, as accepted by the majority are considered to be automatically part of our own laws.
of states, such principles are deemed incorporated in the
law of every civilized state as a condition and The sovereignty of a state therefore cannot in fact and
consequence of its membership in the society of nations. in reality be considered absolute. Certain restrictions
Upon its admission to such society, the state is enter into the picture: (1) limitations imposed by the
automatically obligated to comply with these principles very nature of membership in the family of nations and
(2) limitations imposed by treaty stipulations (Tanada
in its relations with other states. [United States of v. Angara, 272 SCRA 18).
America v. Judge Guinto 261 Phil. 777 (1990)]
Correlation of Reciprocity and the Principle of Auto-
Limitation
Examples of “generally accepted principles of
International Law” When the Philippines enters into treaties, necessarily,
these international agreements may contain limitations
1. Pacta sunt servanda on Philippine sovereignty. The consideration in this
2. Rebus sic stantibus (agreement is valid only if the same partial surrender of sovereignty is the reciprocal
conditions prevailing at time of contracting continue to commitment of other contracting States in granting the
exist at the time of performance) same privilege and immunities to the Philippines.
3. Par in parem non habet imperium (State Immunity
from Suit) (1991, 1994, 1996, 2005, 2006, 2007 Bar) NOTE: For example, this kind of reciprocity in relation
4. Right of states to self-defense to the principle of auto-limitation characterizes the
5. Right to self-determination of people
Philippine commitments under WTO-GATT (Ibid.).
Doctrine of Transformation

It provides that the generally accepted rules of SOURCES OF PUBLIC INTERNATIONAL LAW
international law are not per se binding upon the state
but must first be embodied in legislation enacted by the

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Article 38 of the Statute of International Court of Justice XPN: Treaties may be considered a direct source of
(SICJ) provides that the Court, whose function is to international law when concluded by a sizable number of
decide in accordance with international law such States, and is reflective of the will of the family of nations.
disputes as are submitted to it, shall apply:

Primary Sources (2012 Bar) INTERNATIONAL CUSTOM OR CUSTOMARY

INTERNATIONAL LAW (CIL)
1. International conventions, whether general or
particular, establishing rules expressly recognized A rule of CIL is one that, whether it has been codified in a
by the contesting state treaty, has binding force of law because the community
2. International custom, as evidence of a general of states treats it and views it as a rule of law. In contrast
practice accepted as law; and to treaty law, a rule of CIL is binding upon a state
3. The general principles of law recognized by civilized whether or not It has affirmatively assented to that rule.
nations
A customary rule requires the presence of two
Subsidiary Sources elements:

1. Decisions of international tribunals; and 1. An objective element (general practice) consisting

2. Teachings of the most highly qualified publicists of of a relatively uniform and constant State practice;
various nations. and

NOTE: This category is described as a “subsidiary 2. A psychological element consisting of subjective

means of finding law.” Judicial decisions and scholarly conviction of a State that it is legally bound to behave
writings are, in essence, research aids for the Court, used in a particular way in respect of a particular type of
for example to support or refute the existence of a situation. This element is usually referred to as the
customary norm, to clarify the bounds of general opinion juries sive necessitates.
principles of customary rule, or to demonstrate practice
under a treaty. The Objective Element – general practice

INTERNATIONAL CONVENTIONS OR TREATIES This is normally constituted by the repetition of certain

behavior on the part of a State for a certain length of time
(See discussions under the heading Treaties, and the which manifests a certain attitude, without ambiguity,
Vienna Convention on the Law of Treaties) regarding a particular matter. Evidence of state practice
may include a codifying treaty, if a sufficient number of
Types of Treaties or International Conventions states sign, ratify, or accede.

1. Contract treaties (Traite contract) However, as no particular duration is required for

2. Law making treaty (Traiteloi) practice to become law, on some occasions instant
customs comes into existence. For that reason, a few
Contract treaties repetitions over a short period of time may suffice or
many over a long period of time or even no repetition at
Bilateral arrangements concerning matters of particular all in so far as an instant custom is concerned. However,
or special interest to the contracting parties. the shorter the time, the more extensive the practice
would have to be to become law. A practice must be
They are sources of particular international law but may constant and uniform, in particular with regard to the
become primary sources of public international law affected States, but complete uniformity is not
when different contract treaties are of the same nature, required.
containing practically uniform provisions, and are
concluded by a substantial number of States. A practice must be constant and uniform, in particular
with regard to the affected States, but complete
Law-making treaties uniformity is not required. It would suffice that
conduct is generally consistent with the rule and that
Treaties which are concluded by a large number of States instances of practice inconsistent with the rule are
for purposes of: treated as breaches of that practice is concerned, this will
1. Declaring, confirming, or defining their usually mean widespread but not necessarily universal
understanding of what the law is on a particular adherence to the rule.
subject;
2. Stipulating or laying down new general rules for Indeed, custom may be either general or regional.
future international conduct; and General customs apply to the international community as
3. Creating new international institutions. a whole. Local or regional customs apply to a group of
States or just two States in their relations inter se.
NOTE:
GR: Only the parties are bound by treaties and
international conventions. The Subjective Element – opinion juris sive
necessitates

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including Dissenting States

To assume the status of CIL the rule in question must be
regarded by States as being binding in law, i.e. that they XPN: Dissenting States are not bound by international
are under a legal obligation to obey it. The main customs if they had consistently objected to it while the
purpose of the opinion juris sive necessitates is to project was merely in the process of formation
distinguish between customary rule and mere usage (Persistent Objector Rule).
followed out of courtesy or habit.
Dissent, however protects only the dissenter and does
Put another way, opinion juris, is the conviction of a State not apply to other States. A State joining the
that it is following a certain practice as a matter of law international law system for the first time after a practice
and that, were it to depart from the practice, some form has become customary law is bound by such practice.
of sanction would, or ought to, fall on it.
Persistent Objector Rule
NOTE: CIL is shown by reference to treaties, decisions of
national and international courts, national legislation, If during the formative stage of a rule of customary
diplomatic correspondence, opinions of international international law a State persistently objects to that
organizations. Each of these may be employed as developing rule it will not be bound by it. Once a
evidence of state practice, opinio juris, or both. In the customary rule has come into existence, it will apply to
North Sea Continental Shelf Cases, the ICJ stated that the all States except any persistent objectors. However, an
party asserting a rule of customary international law objecting State, in order to rely on the persistent objector
rule, must:
bears the burden of proving it meets both requirements. Raise its objection at the formative stage of the
rule in question;
Elements of international custom Be consistent in maintaining its objection;
Inform other States of its objection. This is
1. General practice, characterized by uniformity and particularly important with regard to a rule
consistency; which has been almost universally accepted. If a
2. Opinio juris, or recognition of that practice as a legal State remains silent, its silence will be
norm and therefore obligatory; and interpreted as acquiescence to the new rule.
3. Duration
NOTE: The burden of proof is on the objecting State. The
NOTE: Repetition of practice or action of states is persistent objector rule does not apply if the CIL has
necessary. already evolved into a jus cogens rule.

Opinio Juris Sive Necessitates/ Opinio Juris (2008, Example of International Custom
2012 Bar)
The Universal Declaration of Human Rights (UDHR),
As an element in the formation of customary norm in while not a treaty, has evolved as an international
international law, it is required that States in their custom, a primary source of international law, and is
conduct amounting to general practice, must act out of a binding upon the members of the international
sense of legal duty and not only by the motivation of community.
courtesy, convenience or tradition. According to the
International Court of Justice in the North Sea NOTE: In a strict sense, the UDHR is not a treaty but it
Continental Shelf Cases and quoted in Mijares v. Ranada has been considered as a constitutive document for the
(455 SCRA 397 [2005]), “Not only must the acts amount purpose of defining “fundamental freedoms and human
to a settled practice, but they must also be such, or be rights.”
carried out in such a way, as to be evidence of a belief
that this practice is rendered obligatory by the existence
of a rule of law requiring it.” The Relationship between Treaties and International
Custom

Period of time in the formation of customary norms They co-exist, develop each other and, sometimes, clash.
If there is a clash between a customary rule and a
No particular length of time is required for the formation provision of a treaty then, because they are of equal
of customary norms. What is required is that within the authority (except when the customary rule involved is of
period in question, short though it may be, State practice, a jus cogens nature whereupon being superior it will
including that of States whose interest are specially prevail, the one which is identified as being the lex
affected, should have extensive and virtually uniform and specialis will prevail. The lex specialis will be determined
in such a way as to show a general recognition that a rule contextually.
of law or legal obligation is involved.
GENERAL PRINCIPLES OF LAW

Binding effect of international customs Reference to such principles is to both those which are
inferred from municipal laws and those which have no
GR: All States are bound by international customs counterparts in municipal law and are have no

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counterparts in municipal law and are inferred from the that every single published article constitutes an Article
nature of the international community. If there is no 38(1)(d) “teaching”. However, the provision is expressly
treaty relevant to a dispute, or if there is no rule of limited to teachings of “the most highly qualified
customary international la that can be applied to it, the publicists.”
ICJ is directed, under Article 38 of its Statute, to apply
general principles of international law. Such works are resorted to by judicial tribunals not for
the speculation of their authors concerning what the
Simply stated, such principles are gap-filler provisions, law ought to be, but for trustworthy evidence of what
utilized by the ICJ in reference to rules typically found in the law really is (Mr. Justice Gray in Paquete Habana
domestic courts and domestic legal systems in order to case, 175 U.S. 677).
address procedural and other issues.
Requisites to be a most highly qualified publicist:
The main objective of inserting the third source in Article
38 is to fill in gaps in treaty and customary law and to 1. His writings must be fair and impartial
meet the possibility of a non liquet. representation of law;
2. An acknowledged authority in the field.
Non liquet means the possibility that a court or tribunal
could not decide a case because of a ‘gap’ in law. Examples: Grotius, Lauterpacht, Oppenheim, Crawford,
Aust, Shaw, and Brownlie. Authoritative sources within
Examples: Burden of proof, admissibility of evidence, this list include the writings of former Judges, the
waiver, estoppel, unclean hands, necessity, and force secondary opinions of Judges who are not in the majority
majeure. of their cases, and documents created by the
International Law Commission. Within the context of a
DECISIONS OF INTERNATIONAL TRIBUNALS specific field, there are additional scholars who would be
regarded as “highly qualified publicists.”
As there is no binding authority of precedent in
international law, international court and tribunal cases Burdens of Proof
do not make law. Judicial decisions are, therefore, strictly
speaking not a formal source of law. However, they clarify In the Corfu Channel Case (U.K. v. Albania, 1949), the ICJ
the existing law on the topic and may, in some set out the burdens of proof applicable to cases before it.
circumstances, ceate a new principle in international law. The Applicant normally carries the burden of proof with
They can also be considered evidence of State practice. respect to factual allegations contained in its claim by a
preponderance of the evidence. The burden falls on the
Judicial decisions, whether from international tribunals Respondent with respect to factual allegations contained
or from domestic courts, are useful to the extent they in a cross-claim. However, the Court may draw an
address international law directly or demonstrate a adverse inference if evidence is solely in the control of
general principle. one party that refuses to produce it.

Ariticle 59 of the Statute of the ICJ, provides that: Formal sources vs. Material sources

“decisions of the courts have no binding force, except for BASIS FORMAL MATERIAL
the parties and in respect of the case concerned.” SOURCES SOURCES

This provision shows that: refer to the refer to the

various substance and the
1. Decision of the ICJ has no binding authority. processes by content of the
Definition
which rules obligation
2. ICJ does not make law. come into
existence

NOTE: In practice, the ICJ will follow the previous gives the force supplies the
decisions so as to have judicial consistency, or if it does Effect and nature of substance of the
not follow, the court will distinguish its previous law rule
decisions from the case actually being heard. (case:
Interpretation of Peace Treaties. 1950)
Hard law (2009 Bar)
TEACHING OF AUTHORITATIVE PUBLICISTS –
INCLUDING LEARNED WRITERS Means binding laws; to constitute law, a rule, instrument
or decision must be authoritative and prescriptive. In
This source generally only constitutes evidence of international law, hard law includes treaties or
customary law. However, learned writings can also play a international agreements, as well as customary laws.
subsidiary role in developing new rules of law. These instruments result in legally enforceable
commitments for countries (states) and other
“Teachings” refers simply to the writings of learned
scholars. Many students make the mistake of believing international subjects.

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NOTE: An entity is a subject of international law if it has

Soft law (2009 Bar) “international legal personality”. In other words, subjects
must have rights, powers and duties under international
These are non-binding rules of international law. Soft law law and they should be able to exercise those rights,
is of relevance and importance to the development of powers and duties.
international law because it:
has the potential of law-making, i.e. it may be a The subjects of international law:
starting point for later ‘hardening’ of non-
binding provisions (e.g. UNGA resolutions may 1. Direct subjects
be translated into binding treaties); a. States;
may provide evidence of an existing customary b. Colonies and dependencies;
rule; c. mandates and trust territories (2003 Bar);
may be formative of the opinio juris or of State
practice that creates a new customary rule; belligerent communities;
may be helpful as a means of a purposive d. The Vatican;
interpretation of international law; e. The United Nations; international
may be incorporated within binding treaties administrative bodies; and
but in provisions which the parties do not f. To a certain extent, individuals.
intend to be binding; 2. Indirect subjects
may in other ways assist in the development a. International organizations;
and application of general international law. b. Individuals; and
c. Corporations.
NOTE: The importance of soft law is emphasized by the 3. Incomplete subjects
fact that not only States but also non-State actors a. Protectorates;
participate in the international law-making process b. Federal states;
through the creation of soft law. Nevertheless, soft law is c. Mandated and trust territories.
made up of rules lacking binding force, and the general
view is that it should not be considered as an Object
independent, formal source of international law despite
the fact that it may produce significant legal effects. A person or thing in respect of which rights are held and
obligations assumed by the subject.
Example: Yogyakarta Principles
Subject vs. Object of International Law
At this time, the Court is not prepared to declare that
these Yogyakarta Principles contain norms that are BASIS SUBJECT OBJECT
obligatory on the Philippines. Using even the most liberal Entity that has Person or thing in
of lenses, these Yogyakarta Principles, consisting of a rights and respect of which
declaration formulated by various international law responsibilities rights are held
Definition
professors, are – at best – de lege ferenda – and do not under that law and obligations
constitute binding obligations on the Philippines. assumed by the
Indeed, so much of contemporary international law is subject
characterized by the “soft law” nomenclature, i.e., Has international Not directly
international law is full of principles that promote personality that it governed by the
international cooperation, harmony, and respect for can directly assert rules of
human rights, most of which amount to no more than Applicable
rights and can be international law
well-meaning desires, without the support of either State law
held responsible
practice or opinio juris (Ang Ladlad v. COMELEC, G.R. No. under the law of
190582, April 8, 2010). nations
It can be a proper Its rights are
party in received and its
SUBJECTS OF INTERNATIONAL LAW transactions responsibilities
Capacity to involving the imposed
enter into application of the indirectly through
Subject transaction law of nations the
among members instrumentality of
An entity with the capacity of possessing international of international an intermediate
rights and duties and of bringing international claims communities agency
(Magallona, 2005).
NOTE: Under the traditional concept, only states are
The status of the State as subject of law or an considered subjects of international law. However, under
international person is conferred by customary or the contemporary concept, individuals and
general international law. It possesses erga omnes or international organizations are also subjects because
objective personality not merely by virtue of recognition they have rights and duties under international law.
on the part of particular states.

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--- 4. Capacity to enter into relations with other states
Q: Malaya Lolas have approached the Executive (independence/sovereignty) – The power of a state to
Department through the DOJ, DFA, and OSG, manage its external affairs without direction or
requesting assistance in filing a claim against the interference from another state (Montevideo
Japanese officials and military officers who ordered Convention on the Rights and Duties of States, Art. 1).
the establishment of the “comfort women” stations in
the Philippines. But officials of the Executive Recognition not an element
Department declined to assist the petitioners, and
took the position that the individual claims of the The political existence of the state is independent of
comfort women for compensation had already been recognition by the other states. Even before recognition,
fully satisfied by Japan’s compliance with the Peace the state has the right to defend its integrity and
Treaty between the Philippines and Japan. May we independence to provide for its conservation and
force the government to pursue the claims of comfort prosperity, and consequently to organize itself as it sees
women under the doctrine of jus cogens? fit, to legislate upon its interests, administer its services,
and to define the jurisdiction and competence of its
A: NO, the Philippines is not under any international courts. The exercise of these rights has no other
obligation to espouse petitioners’ claims. limitation than the exercise of the rights of other states
according to international law (Montevideo Convention
A State may exercise diplomatic protection by whatever on the Rights and Duties of States, Art. 3).
means and to whatever extent it thinks fit, for it is its
own right that the State is asserting. Should the natural Nation vs. State
or legal person on whose behalf it is acting consider that
their rights are not adequately protected, they have no Nation is defined as a body of people more or less of the
remedy in international law. All they can do is resort to same race, language, religion and historical traditions
national law, if means are available, with a view to (Fenwick 104; Sarmiento, 2007).
furthering their cause or obtaining redress.
Doctrine of Equality of States
The State, therefore, is the sole judge to decide whether
its protection will be granted, to what extent it is granted, All states are equal in international law despite of their
and when will it cease. It retains, in this respect, a obvious factual inequalities as to size, population, wealth,
discretionary power the exercise of which may be strength, or degree of civilization (Sarmiento, 2007).
determined by considerations of a political or other
nature, unrelated to the particular case. (Vinuya v. Principle of State Continuity
Romulo, G.R. No. 162230, April 28, 2010)
--- From the moment of its creation, the state continues as a
juristic being notwithstanding changes in its
International Community circumstances provided only that they do not result in
loss of any of its essential elements (Sapphire Case, 11
It is the body of juridical entities which are governed by Wall. 164 in Cruz, 2003).
the law of nations.
---
NOTE: Under the modern concept, it is composed not Q: If State sovereignty is said to be absolute, how is it
only of States but also of such other international related to the independence of other States and to
persons such as the UN, the Vatican City, colonies and their equality on the international plane?
dependencies, mandates and trust territories,
international administrative bodies, belligerent A: From the standpoint of the national legal order, State
communities and even individuals. sovereignty is the supreme legal authority in relation to
subjects within its territorial domain. This is the
STATE traditional context in referring to sovereignty as
absolute. However, in international sphere, sovereignty
It is a community of persons, more or less numerous, realizes itself in the existence of a large number of
permanently occupying a definite portion of territory, sovereignties, such that there prevails in fact co-
independent of external control, and possessing an existence of sovereignties under conditions of
organized government to which the great body of independence and equality.
inhabitants render habitual obedience. ---

Elements of a State State sovereignty as defined in international law

1. Permanent population (people) – An aggregate of It is the right to exercise in a definite portion of the globe
individuals of both sexes, who live together as a the functions of a State to the exclusion of another State.
community despite racial or cultural differences; Sovereignty in the relations between States signifies
2. Defined territory – Fixed portion of the earth’s independence. Independence in regard to a portion of
surface which the inhabitants occupy; the globe is the right to exercise therein to the exclusion
3. Government – The agency through which the will of of any other State, the functions of a State (Island of
the state is formulated, expressed and realized; and Palmas case: USA v. the Netherlands).

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international agreements of the successor State

Fundamental rights of a State come into force there.

1. Existence and self-preservation NOTE: “Moving Treaty or Moving Boundaries”

2. Sovereignty and independence Rule – 3rd State may seek relief from the treaty
3. Equality on ground of rebus sic stantibus
4. Property and jurisdiction
5. Diplomatic intercourse When a State is absorbed by another State, the
international agreements of the absorbed State
Extinguishment of a State are terminated and the international
agreements of the absorbing State become
The radical impairment of actual loss of one or more of applicable to the territory of the absorbed
the essential elements of the state will result in its State.
extinction (Cruz, 2003).
NOTE: “Moving Treaty or Moving Boundaries”
Succession Rule may apply.

State succession takes place when one state assumes the b. When a part of a State becomes a new State, the
rights and some of the obligations of another because of new State does not succeed to the international
certain changes in the condition of the latter. This holds agreements to which the predecessor State was
true in the event that a state is extinguished or is created a party, unless, expressly or by implication, it
(Cruz, 2000). accepts such agreements and the other party or
parties thereto agree or acquiesce.
Rules: c. Pre-existing boundary and other territorial
agreements continue to be binding
1. As to territory – The capacities, rights and duties of notwithstanding (Utipossidetis rule).
the predecessor State with respect to that territory
terminate and are assumed by the successor State. Effects of a change of sovereignty on municipal laws
2. As to State property – The agreement between the
predecessor and the successor State govern; 1. Laws partaking of a political complexion are
otherwise: abrogated automatically
a. Where a part of the territory of a State becomes 2. Laws regulating private and domestic rights
part of the territory of another State, property continue in force until changed or abrogated
of the predecessor State located in that
territory passes to the successor State. Effect of change of sovereignty when Spain ceded the
b. Where a State is absorbed by another State, Philippines to the US
property of the absorbed State, wherever
located, passes to the absorbing State. The political laws of the former sovereign are not merely
c. Where a part of a State becomes a separate suspended but abrogated. As they regulate the relations
State, property of the predecessor State located between the ruler and the ruled, these laws fall to the
in the territory of the new State passes to the ground ipso facto unless they are retained or re-enacted
new State. by positive act of the new sovereign.
3. As to public debts – Agreement between predecessor
and successor State govern; otherwise: Non-political laws, by contrast, continue in operation, for
a. Where a part of the territory of a State becomes the reason also that they regulate private relations only,
part of the territory of another State, local unless they are changed by the new sovereign or are
public debt and the rights and obligations of the contrary to its institutions. (Public International Law,
predecessor State under contracts relating to 2014, by Isagani Cruz)
that territory are transferred to the successor
State. Effect of Japanese occupation to the sovereignty of
b. Where a State is absorbed by another State, the US over the Philippines
public debt and the rights and obligations
under contracts of the absorbed State pass to Sovereignty is not deemed suspended although acts of
the absorbing State. sovereignty cannot be exercised by the legitimate
c. Where a part of a State becomes a separate authority. Thus, sovereignty over the Philippines
State, local public debt and the rights and remained with the US although the Americans could not
obligations of the predecessor State under exercise any control over the occupied territory at the
contracts relating to that territory are time. What the belligerent occupant took over was
transferred to the successor State. merely the exercise of acts of sovereignty. (Anastacio
4. As to treaties Laurel vs. Eriberto Misa, G.R. No. L-409, January 30, 1947)
a. When part of the territory of a State becomes
the territory of another State, the international Status of allegiance during Japanese occupation
agreements of the predecessor State cease to
have effect in respect of the territory and There was no case of suspended allegiance during the
Japanese occupation. Adoption of the theory of

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suspended allegiance would lead to disastrous entitled to exercise belligerent rights
consequences for small and weak nations or states, and (Hackworth, 166)
would be repugnant to the laws of humanity and
requirements of public conscience, for it would allow Kinds of Recognition
invaders to legally recruit or enlist the quisling
inhabitants of the occupied territory to fight against their 1. Express recognition- may be verbal or in writing. It
own government without the latter incurring the risk of may be extended though:
being prosecuted for treason. To allow suspension is to formal proclamation or announcement
commit political suicide. (Anastacio Laurel vs. Eriberto stipulation in a treaty
Misa, ibid) letter or telegram
official call or conference
NOTE: An inhabitant of a conquered State may be
convicted of treason against the legitimate sovereign 2. Implied recognition- it is when the recognizing state
committed during the existence of belligerency. Although enters into official intercourse with the new
the penal code is a non-political law, it is applicable to member by:
treason committed against the national security of the exchanging diplomatic representatives
legitimate government, because the inhabitants of the with it
occupied territory were still bound by their allegiance to bipartite treaty
the latter during the enemy occupation. Since the acknowledging its flag
preservation of the allegiance or the obligation of fidelity entering into formal relations with it
and obedience of a citizen or subject to his government
or sovereign does not demand from him a positive action, Theories of recognition of a State (2004 Bar) (Con-
but only passive attitude or forbearance from adhering to Dec)
the enemy by giving the latter aid and comfort, the
occupant has no power, as a corollary of the preceding 1. Constitutive theory – Recognition is the last
consideration, to repeal or suspend the operation of the indispensable element that converts the state being
law of treason. (Anastacio Laurel vs. Eriberto Misa, ibid) recognized into an international person.
2. Declaratory theory – Recognition is merely an
Succession of government acknowledgment of the pre-existing fact that the
state being recognized is an international person
There is succession of government where one (Cruz, 2003).
government replaces another either peacefully or by
violent methods. The integrity of the state is not affected; Authority to recognize
the state continues as the same international person
except only that its lawful representative is changed It is to be determined according to the municipal law of
(Cruz, 2000). each State.
Effects of a change of government In Philippine setting: It is the President who
determines the question of recognition and his decisions
1. If the change is peaceful, the new government on this matter are considered acts of state which are,
assumes the rights and responsibilities of the old therefore, not subject to judicial review.
government.
2. If the change was effected thru violence, a Basis of Authority of the President (TRiMP)
distinction must be made.
a. Acts of political complexion may be denounced a. Treaty-making power
b. Routinary acts of mere governmental b. Right in general to act as the foreign policy
administration continue to be effective. spokesman of the nation.
c. Military power
Recognition d. Power to send and receive diplomatic
representatives
It is the acknowledgment extended by a State to:
Another State NOTE: Being essentially discretionary, the exercise of
Government, or a these powers may not be compelled.
Belligerent community
Doctrine of Association (2010 Bar)
NOTE: The acknowledgment by a State is coupled
with an indication of its willingness to deal with the It is formed when two states of unequal power
entity as such under international law. voluntarily establish durable links. In the basic model,
one state, the associate, delegates certain responsibilities
To treat the new State as such to the other, the principal, while maintaining its
To accept the new government as having international status as a state. Free association
authority to represent the State it purports to represents a middle ground between integration and
govern and maintain diplomatic relations with independence.
it
To recognize in case of insurgents that they are NOTE: Republic of the Marshall Islands and the

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Federated States of Micronesia formerly part of the U.S. obligations of

Administered Trust Territory of the Pacific Islands. international
law. It does not carry
The associated state arrangement has usually been used with it the
as a transitional device of former colonies on their way to It carries with it recognition of State
full independence. the recognition
of government
Example: Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Reason: The
Lucia, St. Vincent and Grenada. State recognized
has all the
--- essential
Q: Formal peace talks between the Philippine requisites of a
Government and MILF resulted to the crafting of the State at the time
GRP-MILF Tripoli Agreement on Peace (Tripoli recognition is
Agreement 2001) which consists of three (3) aspects: extended
a.) security aspect; b.) rehabilitation aspect; and c.) Irrevocable Revocable (if
ancestral domain aspect. brought about by
As to its
violent or
Various negotiations were held which led to the revocability
unconstitutional
finalization of the Memorandum of Agreement on the means)
Ancestral Domain (MOA-AD). In its body, it grants
“the authority and jurisdiction over the Ancestral Requirements for recognition of government
Domain and Ancestral Lands of the Bangsamoro” to
the Bangsamoro Juridical Entity (BJE). The latter, in 1. The government is stable and effective, with no
addition, has the freedom to enter into any economic substantial resistance to its authority
cooperation and trade relation with foreign 2. The government must show willingness and ability
countries. to discharge its international obligations
3. The government must enjoy popular consent or
The MOA-AD further provides for the extent of the approval of the people
territory of the Bangsamoro. With regard to
governance, on the other hand, a shared Tests/Criteria in Recognizing a New Government
responsibility and authority between the Central
Government and BJE was provided. The relationship 1. Objective test- the government must be able to
was described as “associative”. Does the MOA-AD maintain order within the state and repel external
violate the Constitution and the laws? aggression.
2. Subjective tests- government is willing to comply
A: The concept of association is not recognized under the with its international obligations
present Constitution. Indeed, the concept implies powers
that go beyond anything ever granted by the Constitution Tobar or Wilson Doctrine (2004 Bar)
to any local or regional government. It also implies the
recognition of the associated entity as a state. The It precludes recognition to any government coming into
Constitution, however, does not contemplate any state in existence by revolutionary means so long as the freely
this jurisdiction other than the Philippine State, much elected representatives of the people thereof have not
less does it provide for a transitory status that aims to constitutionally reorganized the country.
prepare any part of Philippine territory for
independence. Stimson Doctrine

The provisions of the MOA indicate that the parties No recognition of a government established through
aimed to vest in the BJE the status of an associated state external aggression (Nachura, 2009).
or, at any rate, a status closely approximating it (Prov. of
North Cotabato v. GRP, G.R. No. 183591, Oct. 14, 2008). Estrada Doctrine (2004 Bar)
---
It involves a policy of never issuing any declaration
Recognition of State vs. Recognition of Government giving recognition to governments and of accepting
whatever government is in effective control without
BASIS STATE GOVERNMENT raising the issue of recognition. An inquiry into
On a definite Person or a group legitimacy would be an intervention in the internal
territory of of persons capable affairs of another State.
human society of binding the state
politically they claim to
As to extent organized, represent
independent
and capable of
observing the

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De jure recognition vs. De facto recognition (1998 2. Their relations for the duration of
Bar) hostilities be governed by the
laws of war
BASIS RECOGNITION RECOGNITION 3. Troops of other belligerent when
DE JURE DE FACTO captured, shall be treated as
Relatively Provisional (e.g.: prisoners of war
Duration permanent duration of armed 4. Parent state shall no longer be
struggle) liable for any damage that may be
Vests title to Does not vest title caused to third parties by rebel
Entitlement to properties of to properties of government
properties government government 5. Both belligerents may exercise
abroad abroad the right to visit and search
Scope of Brings about full Limited to certain upon neutral merchant vessels
Diplomatic diplomatic juridical relations 6. Both the rebel and the legitimate
Power relations government shall be entitled to
full war status
Effects of Recognition (FIPA) They are under obligation to observe
As to third strict neutrality and abide by the
1. Full diplomatic relations are established. States consequences arising from that
EXP: Where the government recognized is de facto position.
2. Immunity from jurisdiction of courts of law of
recognizing State. Insurgency vs. Belligerency
3. Right to Possession of the properties of its
predecessor in the territory of the recognizing State BASIS INSURGENCY BELLIGERENCY
A mere initial More serious and
NOTE: This is not applicable as to Recognition of stage of war. It widespread and
State. involves a rebel presupposes the
movement, and existence of war
4. All Acts of the recognized stated or government are As to nature is usually not between 2 or more
validated retroactively, preventing the recognizing recognized. states (1st sense)
state from passing upon their legality in its own or actual civil war
courts within a single
state (2nd sense).
Belligerency Sanctions to Belligerency is
insurgency are governed by the
It exists when the inhabitants of a State rise up in arms governed by rules on
for the purpose of overthrowing the legitimate As to the municipal law – international law
government or; when there is a state of war between two applicable law Revised Penal as the belligerents
states. Code, i.e. may be given
rebellion. international
Requisites in recognizing belligerency (OSSO) personality.

1. There must be an Organized civil government Recognition and Belligerency

directing the rebel forces.
2. The rebels must occupy a Substantial portion of the Recognition of belligerency is the formal
territory of the state. acknowledgment by a third party of the existence of a
3. The conflict between the legitimate government and state of war between the central government and a
the rebels must be Serious, making the outcome portion of that state. Belligerency exists when a sizable
certain. portion of the territory of a state is under the effective
4. The rebels must be willing and able to Observe the control of an insurgent community which is seeking to
laws of war. establish a separate government and the insurgents are
in de facto control of a portion of the territory and
population, have a political organization, and are able to
Legal Consequences of Belligerency maintain such control and conduct themselves according
to the laws of war. For example, Great Britain recognized
PERIOD EFFECT a state of belligerency in the United States during the
Before It is the legitimate government that is Civil War.
Recognition of responsible for the acts of the rebels
the parent affecting foreign nationals and their INTERNATIONAL ORGANIZATIONS
state properties.
1. The belligerent community is Bodies created by sovereign states and whose
After considered a separate state for functioning is regulated by international law, not the law
recognition of the purposes of the conflict it is of any given country. They have functional personality
the parent waging against the legitimate which is limited to what is necessary to carry out their
state government. functions as found in the instruments of the organization.

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It is set up by treaty among two or more states. It enjoys self-determination

immunity which is based on the need for effective NOTE: arises only in the
exercise of its functions and is derived from the treaty most extreme cases and,
creating it (Bernas, 2009). even then, under carefully
defined circumstances
Q: What does the term “auxiliary status” of some
international organizations entails?
Exceptional cases in which the right to external self-
A: The term “auxiliary status” of some international determination can arise, namely:
organizations, such as the Red Cross Society, means that 1. where a people is under colonial rule,
it is at one and the same time a private institution and a 2. subject to foreign domination or exploitation
public service organization because the very nature of its outside a colonial context, and
work implies cooperation with the state. The PNRC, as a 3. blocked from the meaningful exercise of its right to
National Society of the International Red Cross and Red internal self-determination (Prov. of North Cotabato
Crescent Movement, can neither be “classified as an
instrumentality of the state, so as not to lose its character v. GRP, G.R. No. 183591, Oct. 14, 2008)
of neutrality” as well as its independence, nor strictly as
a private corporation since it is regulated by NOTE: The people’s right to self-determination does not
international humanitarian law and is treated as an extend to a unilateral right of secession.
auxiliary of the state (Liban v. Gordon, G.R. No. 175352,
Jan. 18, 2011). Right to Internal Self-Determination of Indigenous
Peoples
INDIVIDUALS
Indigenous peoples situated within States do not have a
The modern trend in public international law is the general right to independence or secession from those
primacy placed on the worth of the individual person states under international law, but they do have the right
and the sanctity of human rights. Slowly, the recognition amounting to the right to internal self-determination.
that the individual person may properly be a subject of Such right is recognized by the UN General Assembly by
international law is now taking root. The vulnerable adopting the United Nations Declaration on the rights of
doctrine that the subjects of international law are limited Indigenous Peoples (UNDRIP) (Prov. of North Cotabato v.
only to states was dramatically eroded towards the GRP, ibid)
second half of the past century. For one, the Nuremberg
and Tokyo trials after World War II resulted in the NOTE: The UN DRIP, while upholding the right of
unprecedented spectacle of individual defendants for indigenous peoples to autonomy, does not obligate States
acts characterized as violations of the laws of war, crimes to grant indigenous peoples the near independent status
against peace, and crimes against humanity. Recently, of an associated state. There is no requirement that
under the Nuremberg principle, Serbian leaders have States now guarantee indigenous peoples their own
been persecuted for war crimes and crimes against police and internal security force, nor is there an
humanity committed in the former Yugoslavia. These acknowledgment of the right of indigenous peoples to
significant events show that the individual person is now the aerial domain and atmospheric space. But what it
a valid subject of international law (Gov’t of Hong Kong upholds is the right of indigenous peoples to the lands,
Special Administrative Region v. Hon. Olalia, G.R. No. territories and resources, which they have traditionally
153675, April 19, 2007). owned, occupied or otherwise used or acquired (Prov. of
North Cotabato v. GRP, ibid.).
Internal Self-Determination vs. External Self-
Determination ---
Q: In 1947, the UN made the border between Israel
Internal Self- External Self- and Palestine known as the Green Line. Following the
Determination Determnation Palestinian Arab violence in 2002, Israel began the
construction of the barrier that would separate West
People’s pursuit of its Establishment of a Bank from Israel. Palestinians insisted that the fence
political, economic, social sovereign and is an “Apartheid fence” designed to de facto annex the
and cultural development independent State, the West Bank of Israel. The case was submitted to the
within the framework of free association or ICJ for an advisory opinion by the General Assembly
an existing State. integration with an of the United Nations under resolution ES-10/14. Did
independent State or the Israel undermine the right of self-determination of
emergence into any other the people of Palestine when it created the wall?
political status freely
NOTE: Recognized determined by a people A: Yes. Construction of the wall severely impedes the
sources of international which constitute modes of exercise by the Palestinian people of its right to self-
law establish that the right implementing the right of determination.
to self-determination of a self-determination by that
people is normally people. The existence of a “Palestinian people” is no longer in
fulfilled through internal issue. Such existence has moreover been recognized by

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Israel in the exchange of letters. The Court considers that highest rank or, in Catholic countries, the papal nuncio.
those rights include the right to self-determination, as
the General Assembly has recognized on a number of Functions of a diplomatic mission (Re-P-Pro-N-A-R)
occasions. The route chosen for the wall gives expression
in loco to the illegal measures taken by Israel with regard 1. Represent sending State in receiving State
to Jerusalem and the settlements. Also, there were 2. Protect in receiving State interests of sending State
further alterations to the demographic composition of and its nationals
the Occupied Palestinian Territory resulting from the 3. Negotiate with government of receiving State
construction of the wall as it is contributing to the 4. Promote friendly relations between sending and
departure of Palestinian population from certain areas. receiving States and developing their economic,
That construction, along with measures taken previously, cultural, and scientific relations
has been said to severely impede the exercise by the 5. Ascertain by all lawful means conditions and
Palestinian people of its right to self-determination, and developments in receiving State and reporting
is therefore a breach of Israel’s obligation to respect that thereon to government of sending State
right (ICJ Advisory Opinion on Legal Consequences of the 6. In some cases, Represent friendly governments at
Construction of a Wall in the Occupied Palestinian their request.
Territory, July 9, 2004).
--- Classes of heads of a diplomatic mission

1. Ambassadors or nuncios- accredited to Heads of

DIPLOMATIC AND CONSULAR LAW State and other heads of missions of equivalent
rank.
2. Envoys ministers and internuncios- accredited to
Right of legation/ Right of Diplomatic Intercourse heads of State.
3. Charge d’ affaires- accredited to ministers of foreign
It is the right of the state to send and receive diplomatic affairs.
missions, which enables states to carry on friendly
intercourse. It is governed by the Vienna Convention on NOTE: The appointment of diplomats is not merely a
Diplomatic Relations (1961). matter of municipal law because the receiving State is
not obliged to accept a representative who is a persona
The exercise of this right is one of the most effective ways non grata to it. Indeed, there have been cases when duly
of facilitating and promoting intercourse among nations. accredited diplomatic representatives have been
Through the active right of sending diplomatic rejected, resulting in strained relations between the
representatives and the passive right of receiving them, sending and receiving State.
States are able to deal more directly and closely with
each other in the improvement of their mutual Persona non Grata
intercourse.
In international law and diplomatic usage means a
NOTE: As the right of legation is purely consensual, the person not acceptable (for reasons peculiar to himself)
State is not obliged to maintain diplomatic relations to the court or government to, which it is proposed to
with other States. accredit him in the character of an ambassador or
minister.
If it wants to, a State may shut itself from the rest of the
world, as Japan did until the close of the 19th century. Agreation

Disadvantage: A policy of isolation would hinder the It is a practice of the States before appointing a
progress of a State since it would be denying itself of the particular individual to be the chief of their diplomatic
many benefits available from the international mission in order to avoid possible embarrassment.
community.
It consists of two acts:
Agents of diplomatic intercourse 1. The inquiry, usually informal, addressed by the
sending State to the receiving State regarding the
1. Head of State acceptability of an individual to be its chief of
2. Foreign secretary or minister mission; and
3. Members of diplomatic service 2. The agreement, also informal, by which the
4. Special diplomatic agents appointed by head of the receiving State indicates to the sending State that
State such person, would be acceptable.
5. Envoys ceremonial
Letter of Credence
Diplomatic Corps
It is the document by which the envoy is accredited by
It is a body consisting of the different diplomatic the sending State to the foreign State to which he is being
representatives who have been accredited to the same sent. It designates his rank and the general object of his
local or receiving State. It is headed by a doyun de corps, mission, and asks that he be received favorably and that
who, by tradition, is the oldest member within the full credence be given to what he says on behalf of his

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State. 1. Any real action relating to private immovables

situated in the territory of the receiving State unless
Letter Patent the envoy holds the property in behalf of the
sending State.
The appointment of a consul is usually evidenced by a 2. Actions relating to succession where diplomatic
commission, known sometimes as letter patent or agent is involved as executor, administrator, heirs
letred’provision, issued by the appointing authority of the or legatee as a private person and not on behalf of
sending State and transmitted to the receiving State the sending State
through diplomatic channels. 3. An action relating to any professional or
commercial activity exercised by the diplomatic
DIPLOMATIC IMMUNITY agent in the receiving State outside his official
(2001, 2005 Bar) functions

Nature Modes of waiving diplomatic immunity and

privileges
Diplomatic immunity is essentially a political question
and the courts should refuse to look beyond the 1. Expressly by the sending State;
determination by the executive branch. 2. Impliedly, as when the person entitled to the
immunity from jurisdiction commences litigation in
Q: Besides the head of the mission, who can enjoy the local courts and thereby opens himself to any
diplomatic immunities and privileges? counterclaim directly connected with the principal
claim.
A: Diplomatic suite or retinue which consist of:
NOTE: Waiver of immunity from jurisdiction with regard
1. Official staff- it is made up of the administrative and to civil and administrative proceedings shall not be held
technical personnel of the mission, including those to mean implied waiver of the immunity with respect to
performing clerical work, and the member of their the execution of judgment, for which a separate waiver
respective families shall be necessary.

2. Non-official staff- composed of the household help, ---

such as the domestic servants, butlers, and cooks Q: The U.S. Ambassador from the Philippines and the
and chauffeurs employed by the mission American Consul General also in the Philippines
quarreled in the lobby of Manila Hotel and shot each
NOTE: As a rule, however, domestic servants enjoy other. May Philippine courts take jurisdiction over
immunities and privileges only to the extent admitted by them for trial and punishment for the crime they
the receiving State and insofar as they are connected may have committed?
with the performance of their duties.
A: The Ambassador is immune from prosecution for all
Privileges and immunities of diplomatic mission crimes committed by him whether officially or in his
private capacity. The consul is immune from criminal
1. Personal inviolability – Members of diplomatic prosecution only for acts committed by him in
mission shall not be liable for any form of arrest or connection with his official functions. The Philippine
imprisonment courts can take jurisdiction over the Consul but not over
2. Inviolability of premises – Premises, furnishings the Ambassador
and means of transport shall be immune from ---
search, seizure, attachment or execution. ---
3. Archives or documents shall be inviolable Q: The Ambassador of State X to the Philippines
4. Diplomatic agents are immune from criminal, civil bought, in the name of his government, two houses
or administrative liability. and lots at Forbes Park, Makati. One house is used as
5. Receiving State shall protect official the chancery and residence of the ambassador, and
communication and official correspondence of the other as quarters for nationals of State X who are
diplomatic mission. studying in the University of Santo Tomas. The
6. Receiving State shall ensure all members of Registrar of Deeds refused to register the sale and to
diplomatic mission freedom of movement and issue Transfer Certificates of Title in the name of
travel. State X on the ground of the prohibition of the
7. A diplomatic agent is exempted to give evidence as Constitution against the alienation of lands in favor
a witness. of aliens. Is his refusal justified?
8. Exemption from general duties and taxes including
custom duties with certain exceptions. A: The prohibition in the Constitution against alienation
9. Use of flag and emblem of sending State on premises of lands in favor of aliens does not apply to alienation of
of receiving State. the same in favor of foreign governments to be used as
chancery and residence of its diplomatic representatives.
XPNs to the privileges and immunities of diplomatic The receiving State is under obligation to facilitate the
representatives acquisition on its territory, in accordance with its laws,
by the sending State of premises necessary for its

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mission, or to assist the latter in obtaining Sources of Authority of Consuls
accommodation in some other way. Therefore, the
refusal of the Register of Deeds to register the sale and 1. Letter patent or letter ‘de provision – Which is the
the issuance of TCT in the name of State X is unjustified. commission issued by the sending State, and
2. Exequatur – Which is the permission given them by
However, in so far as the house and lot to be used as the receiving State to perform their functions
quarters of the nationals of State X who are studying in therein.
the University of Santo Tomas are concerned, the
Register of Deeds correctly refused registration. Here, Immunity of Consuls
the prohibition in the constitution against the transfer of
properties to parties other than the Filipino citizens or Consuls enjoy their own immunities and privileges but
corporation 60% of the capital of which is owned by not to the same extent as those enjoyed by the diplomats.
such citizens should be followed. Like diplomats, consuls are entitled to:
--- 1. Inviolability of their correspondence, archives
and other documents
Exequatur (1991 Bar) 2. Freedom of movement and travel
3. Immunity from jurisdiction for acts performed
An authorization from the receiving State admitting the in their official capacity; and
head of a consular post to the exercise of his functions. 4. Exemption from certain taxes and customs
Thus, an appointee cannot start performing his function duties
unless the receiving State issues an exequatur to him.
Liabilities of Consuls
Diplomats vs. Consuls
1. Arrest and punishment for grave offenses; and
2. May be required to give testimony, subject to
Are concerned with political relations certain exceptions.
Diplomats
of States.
They are not concerned with political NOTE: Members of a consular post are under no
matters and attend rather to obligation to give evidence on the following situations:
Consuls administrative and economic issues. a. Concerning matters connected with the
exercise of their functions
b. To produce official correspondence and
documents
Kinds of Consuls c. To give evidence as expert witness with
regard to the law of the sending State
1. Consules missi – Professional or career consuls who
are nationals of the sending State and are required Immunity of consular offices
to devote their full time to the discharge of their
duties Extent: With respect to that part where the consular
2. Consules electi – May or may not be nationals of the work is being performed;
sending State and perform their consular functions
only in addition to their regular callings Q: May consular offices be subject to expropriation
by the receiving State?
NOTE: Examples of regular callings include acting as
notary, civil registrar and similar administrative A: YES, for purposes of national defense or public utility.
capacities and protecting and assisting the nationals of
the sending State. NOTE: With respect to expropriation by the
receiving State, steps shall be taken to avoid
Duties of Consuls (P-Ob- Prom-Is-Su) impeding the performance of consular functions,
and prompt, adequate and effective compensation
1. Protection of the interests of the sending State and shall be paid by the sending State. (Article 31 of the
its nationals in the receiving State. Vienna Convention on Consular Relations and
2. Promotion of the commercial, economic, cultural, Optional Protocols)
and scientific relations of the sending and receiving
States. Diplomatic Immunity vs. Consular Immunity
3. Observation of the conditions and developments in
the receiving State and report the same to the BASIS DIPLOMATIC CONSULAR
sending State. Premises of the Consular premises
4. Issuance of passports and other travel documents to mission includes includes the
nationals of the sending State and visas or the building or buildings or parts
appropriate documents to persons wishing to travel Scope as to
parts of building of buildings and
to the sending State. buildings
and the land the land
5. Supervision and inspection of vessels and aircraft of and premises
irrespective of the irrespective of
the sending State. ownership used ownership used
for the purpose of exclusively for the

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the mission purposes of receiving State outside of his official functions

including the consular posts (Vienna Convention of Diplomatic Relations, Art. 31).
residence of the
head of mission 2. A consular officer does not enjoy immunity from the
GR: The agents of GR: The agents of criminal jurisdiction of the receiving State and are
the receiving state the receiving state not amenable to the jurisdiction of the judicial or
may not enter the may not enter the administrative authorities of the receiving State in
premises of the consular premises respect of acts performed in the exercise of consular
mission functions.
On entry of XPN: Consent of
agents of the XPN: Consent of the head of the However, this does not apply in respect of a civil action
receiving the head of the consular post. either:
state mission Consent is 1. Arising out of a contract concluded by a consular
assumed in case of officer in which he did not enter expressly or
fire or other impliedly
disasters requiring 2. By a third party for damages arising from an
prompt protective accident in the receiving State caused by a vehicle,
action vessel or aircraft (Vienna Convention on the Consular
Personal baggage Consular bag shall Relations, Arts. 41 and 43).
of a diplomatic not be opened. It
agent shall not be may be requested Grounds for Termination of Consular Office
opened that the bag be (2D-2W-RN)
opened in their
presence by an 1. Death of consular officer
authorized 2. Recall
representative of 3. Dismissal
As to 4. Notification by the receiving State to the sending
the receiving state
inviolability State that it has ceased to consider as member of the
if they have
of baggage consular staff
serious reason to
believe that the 5. Withdrawal of his exequatur by the receiving State.
bag contains 6. War – outbreak of war between his home State and
objects of other the receiving State.
articles,
documents, DIPLOMATIC RELATIONS
correspondence or
articles Grounds for termination of diplomatic relations
under municipal law (RADAR)
Not obliged to May be called
give evidence as a upon to attend as
1. Resignation
As a witness witness a witness; if
2. Accomplishment of the purpose
before the declined, no
3. Death
court coercive measure
4. Abolition of the office
or penalty may be
5. Removal
applied

Differences in the privileges or immunities of

Grounds for termination of diplomatic relation
diplomatic envoys and consular officers from the civil
under international law
and criminal jurisdiction of the receiving State
1. War – Outbreak between the sending and the
1. A diplomatic agent shall enjoy immunity from the
receiving State.
criminal jurisdiction of the receiving State. He shall
2. Extinction of either the sending State or the
also enjoy immunity from its civil and administrative
receiving State.
jurisdiction
3. Recall – Demanded by the receiving State when the
foreign diplomat becomes persona non grata
XPNs:
a. A real action relating to private immovable property
Termination of diplomatic relations does not
situated in the territory of the receiving State, unless
terminate consular relations between the sending
he holds it on behalf of the sending State for the
and receiving States
purpose of the mission;
b. An action relating to succession in which the
Consuls belong to a class of State agents distinct from
diplomatic agent is involved as executor,
that of diplomatic officers. They are not clothed with
administrator, heir or legatee as private person and
diplomatic character and are not accredited to the
not on behalf of the sending State;
government of the country where they exercised their
c. An action relating to any professional or commercial
consular functions; they deal directly with local
activity exercised by the diplomatic agent in the
authorities

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for purposes of:
They do not represent their State in its relations with
foreign States and are not intermediaries through whom 1. Declaring, confirming, or defining there understanding
matters of State are discussed between governments. of what the law is on a particular subject.
Consuls look mainly after the commercial interest of
their own State in the territory of a foreign State. 2. Stipulating or laying down new general rules for future
international conduct; and

TREATIES 3. Creating new international institutions.

It lays down rules of general or universal application and

Treaty (2003 Bar) are intended for future and continuing observance.

A treaty is generally defined as agreements between and Treaty Contracts

among States, by which parties obligate themselves to
act, or refrain from acting, according to the terms of the Resemble contracts in that they are concluded to
treaty. perform contractual rather than normative functions. It
usually concerns the regulation of a narrow area of
However, under the Vienna Convention on the Law of practice between two States (e.g. trade agreements).
Treaties (VCLT), a treaty has been defined as “an Such treaties may lead to the formation of general
international agreement concluded between States in international law through the operation of the principles
written form and governed by international law, whether governing the development of customary rules in the
embodied in a single instrument or in two or more following ways:
related instruments and whatever its particular
designation.” 1. A series of treaties each of which lay down
similar rule may produce a rule of customary
Essential Characteristics of Treaties international law to the same effect.

1. It becomes binding on the parties to it by virtue of 2. A rule contained in a treaty originally

their consent. concluded between a limited number of
parties may subsequently be accepted or
2. While treaties will, in most cases, be written imitated as a general rule.
instruments concluded between States, the term
applies equally to unwritten agreements and to 3. A treaty may have evidential value as to the
agreements between States and international existence of a rule which has crystallized into
organizations and between international law by an independent process of
organizations. development.

Many treaties, particularly those of a multilateral nature

designed to establish general rules of common VIENNA CONVENTION ON THE LAW OF TREATIES
application, exhibit a mixture of ‘legislative’
characteristics. A provision of a treaty may; Vienna Convention on the Law of Treaties (VCLT)
(2012 Bar)
Purport to codify existing rules of customary
law, e.g. Art. 55 of the 1982 Convention on the The law of treaties is the body of rules which govern
Law of the Sea which provides for the what is a treaty, how it is made and brought into force,
recognition of the EEZ; amended, terminated, and generally operates. Apart
Crystallize a developing rule of law, firmly from issues of jus cogens, it is not concerned with the
establishing a legal footing a situation which substance of a treaty (the rights and obligations created
has previously been part of the practice of a by it), which is known as treaty law. Although the VCLT
limited number of States; does not occupy the whole ground of the law of treaties,
Generate rules of law independently of the it covers the most important areas and is the
previous practice of State, e.g. prohibition on indispensable starting point for any description of the
the threat or use of force in international law. For good reason, the VCLt has been called the treaty
relations. on treaties.

Two kinds of a treaty It was adopted on 22 May 1969 and opened for signature
on 23 May 1969. The Convention entered into force on
27 January 1980.
1. Law-making treaties (normative treaties)
2. Treaty contracts Scope

Law-making treaties or Normative Treaties 1. The VCLT sets out the law and procedure for the
making, operation, and termination of a treaty.
Treaties which are concluded by a large number of States

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2. It does not apply to all treaties, only those between

States (Art. 1 VCLT). Nor is it concerned with the Usual steps in the treaty-making process
substance of a treaty as such. That is a matter for the (NeS-RA-ER)
negotiating States.
1. Negotiation – Conducted by the parties to reach an
3. The VCLT as a treaty does not apply retroactively to agreement on its terms.
treaties concluded before its entry into force. Only rules 2. Signature – The signing of the text of the instrument
agreed upon by the parties.
in the VCLT that codify or reflect rules of CIL apply. 3. Ratification – The act by which the provisions of a
treaty are formally confirmed and approved by the
4. Because the VCLT resulted from a codification project, State.
many of its rules are consistent with otherwise 4. Accession – A State can accede to a treaty only if
applicable rule of CIL. invited or permitted to do so by the contracting
parties. Such invitation or permission is usually
FUNDAMENTAL PRINCIPLES OF THE LAW OF given in the accession clause of the treaty itself.
TREATIES 5. Exchange of instruments of ratification;
6. Registration with the United Nations.
1. The principle of free consent – A state cannot be
bound by treaty to which it has not consented. Free
consent is vital for initial adoption and subsequent Traditional Methods of Expressing Consent to a
development of a particular treaty as it ensures that a Treaty
State remains in control of the commitments it has made
under the relevant treaty. 1. Signature – The legal effects of signature are as
follows:
2. The principle of pacta sunt servanda – Literally
means agreements must be kept. Embodied in Art. 26 a.) The signing of a treaty may represent simply
VCLT, which states that; ‘Every treaty in force is binding an authentication of its text. Where signature is
upon the parties to it and must be performed by them in subject to ratification, acceptance or approval,
good faith. Therefore, a contracting party will be held signature does not establish consent to be
responsible for breach of a treaty.’ Applies only to bound.
treaties which are in force, not to invalid, suspended or
terminated treaties. NOTE: The act of signing a treaty creates an
obligation of good faith on the part of the
3. The principle of good faith – Recognized as the signatory: to refrain from acts calculated to
foundation of international legal order. States and non- frustrate the objects of the treaty and to submit
State actors are required to comply with binding the treaty to the appropriate constitutional
obligations imposed upon them by international law, machinery for approval. Signature does not,
irrespective of whether such obligations derive from however, create an obligation to ratify.
treaties, customary rules, or any other source of
international law. It is all encompassing as it even b.) In the case of a treaty which is only to
imposes obligations on a State in the pre-ratification become binding upon ratification, acceptance
stage. or approval, that treaty, unless declaratory of
customary law, will not be enforceable against
It applies though out the life of a treaty, form its a party until one of those steps is taken.
negotiation, through its performance to its termination.
c.) Where a treaty is not subject of ratification,
Each time a State is in reach of the principle of pacta sunt acceptance or approval, but a State’s signature
servanda it also vilates the principle of good faith. will signify consent to be bound. The consent of
a State to be bound by a treaty is expressed by
Essential Requisites of a Valid Treaty the signature of its representatives when:

1. It must be a written instrument or instruments the treaty provides that signature

between two or more parties; shall have that effect;
2. The parties must be States within the meaning of
international law (IL); it is otherwise established that the
3. It must be governed by IL; and negotiating states were agreed that
4. It must be intended to create legal obligations. signature should have that effect; or

Exclusions the intention of the State to give effect

to the signature appears from the full
1. Those concluded between states and other subjects of powers of the representative or was
IL. expressed during the negotiations.
2. Agreements not in writing.
3. Those which are governed by the national law system
chosen by the parties.

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2. Ratification – A formal act whereby one State
declares its acceptance of the terms of the treaty and Under the Constitution the power to ratify is vested in
undertakes to observe them. Ratification is used to the President subject to the concurrence of the Senate. The
describe two distinct procedural acts: President has the discretion even after the signing of the
treaty by the Philippine representative whether or not to
a. Ratification in municipal law – is the formal act of ratify a treaty. The signature of the representative does
the appropriate organ of the State effected in not signify final consent, it is ratification that binds the
accord with national constitutional law. state to the provisions of the treaty and renders it
effective.
b. Ratification in international law – Ratification is a
procedure which brings a treaty into force for The role of the Senate is limited only to giving or
the State concerned by establishing its definitive withholding its consent, concurrence to the ratification.
consent to be bound by the particular treaty. It is within the President to refuse to submit a treaty to
International law is not concerned with the the Senate or having secured its consent for its
requirements of its constitutional law. ratification, refuse to ratify it. Such decision is within the
competence of the President alone, which cannot be
NOTE: Despite the fact that a treaty may be ratified by encroached by this Court via writ of mandamus
nothing more than the signature of the relevant State’s (Pimentel v. Executive Secretary, G.R. No. 158088, July 6,
representative, in many case States insist upon a 2005).
ratification procedure consisting of more formal steps.
The House of Representatives (HoR) cannot take active
Ratification is so required when under Art. 14 (1) of part in the conduct of foreign relations, particularly in
the VCLT: entering into treaties and international agreements. As
held in US v. Curtiss Wright Export Corporation (299 US
1. A treaty provides for such consent to be expressed by 304), it is the President alone who can act as
means of ratification; representative of the nation in the conduct of foreign
affairs. Although the Senate has the power to concur in
2. It is otherwise established that the negotiating States treaties, the President alone can negotiate treaties and
were agreed that ratification should be required; Congress is powerless to intrude into this.
3. The representative of the State has signed the treaty NOTE: However, if the matter involves a treaty or an
subject to ratification; or executive agreement, the HoR may pass a resolution
expressing its views on the matter.
4. The intention of the State to sign the treaty subject to ---
ratification appears from the full powers of its
representative or was expressed during the negotiation. Doctrine of Unequal Treaties
3. Accession or adherence or adhesion - occurs when
The doctrine posits that treaties which have been
a State, which did not participate in the negotiating and
imposed through coercion or duress by a State of
singing of the relevant treaty, formally accepts its
unequal character are void.
provisions. It may occur before or after a treaty has
entered into force. It is only possible if it is provided for
Protocol de Clôture
in the treaty, or if all the parties to the treaty agree that
the acceding State should be allowed to accede.
It is a final act and an instrument which records the
winding up of the proceedings of a diplomatic conference
---
and usually includes a reproduction of the texts of
Q: A petition for mandamus was filed in the SC to
treaties, conventions, recommendations and other acts
compel the Office of the Executive Secretary and the
agreed upon and signed by the plenipotentiaries
Department of Foreign Affairs to transmit (even
attending the conference.
without the signature of the President) the signed
copy of the Rome Statute of the International
Instances when a third State who is a non-signatory
Criminal Court (ICC) to the Senate of the Philippines
may be bound by a treaty
for its concurrence or ratification – in accordance
with Sec. 21, Art. VII of the 1987 Constitution.
1. When a treaty is a mere formal expression of
customary international law, which, as such is
Petitioners contend that ratification of a treaty,
enforceable on all civilized states because of their
under both domestic law and international law, is a
membership in the family of nations.
function of the Senate. That under treaty law and
2. Under Art. 2 of its charter, the UN shall ensure that
customary international law, Philippines has a
non-member States act in accordance with the
ministerial duty to ratify the Rome Statute.
principles of the Charter so far as may be necessary
Respondents on the other hand, argued that
for the maintenance of international peace and
executive department has no duty to transmit the
security. Under Art. 103, obligations of member-
Rome Statute to the Senate for concurrence. Decide.
states shall prevail in case of conflict with any other
international agreement including those concluded
A: The power to ratify treaties does not belong to the
with non-members.
Senate.

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3. The treaty itself may expressly extend its benefits to of judicial review over the constitutionality of any treaty,
non-signatory States. international or executive agreement and must hear such
4. Parties to apparently unrelated treaties may also be case en banc.
linked by the most-favored nation clause.
Rules in case of Conflict Between a Treaty and a
Effectivity Date of a Treaty Custom

1. In such manner and upon such date as it may 1. If the treaty comes after a particular custom- treaty
provide or as the negotiating States may agree. prevails, as between the parties to the treaty
2. Failing any such provision or agreement, a treaty 2. If the custom develops after the treaty- custom
enters into force as soon as consent to be bound by prevails it being an expression of a later will.
the treaty has been established for all the
negotiating States. A treaty or conventional rule may not qualify as a
norm of jus cogens character
NOTE:
GR: A State may not invoke the fact that its consent to the Treaty rule binds only States that are parties to it and
treaty was obtained in violation of its internal law. even in the event that all States are parties to a treaty,
they are entitled to terminate or withdraw from the
XPN: If the violation was manifest and concerned a rule treaty.
of its internal law of fundamental importance.
NOTE: If a treaty at the time of its conclusion, conflicts
A violation is manifest if it would be objectively evident with jus cogens, it is void. (2008 Bar)
to any State conducting itself in the matter in accordance
with normal practice and in good faith. Treaty vs. Executive Agreement (2015 Bar)

Reservation EXECUTIVE
TREATY
BASIS AGREEMENT
It is a unilateral statement, however phrased or named, It involves basic These are
made by a State, when signing, ratifying, accepting, political issues adjustments of
approving, or acceding to a treaty, whereby it purports to and changes in details in carrying
exclude or modify the legal effect of certain provisions of As to nature
national policy out well
the treaty in their application to that State. established
national policies
Reservation is NOT applicable when: Permanent Merely temporary
As to
international arrangements.
1. The treaty itself provides that no reservation shall permanence
agreements.
be admissible, It needs the It needs no
2. The treaty allows only specified reservations which Concurrence
concurrence of concurrence from
do not include the reservation in question, of Senate
the Senate the Senate
3. The reservation is incompatible with the object and
purpose of the treaty. ---
Q: Enhanced Defense Cooperation Agreement (EDCA)
Effects of Reservation and of Objections to authorizes the U.S. military forces to have access to
Reservations and conduct activities within certain "Agreed
Locations" in the country. It was not transmitted to
1. Modifies, for the reserving State in its relations with the Senate on the Executive's understanding that to
that other party, the provisions of the treaty to do so was no longer necessary. Accordingly, in June
which the reservation relates to the extent of the 2014, the DFA and the U.S. Embassy exchanged
reservation; diplomatic notes confirming the completion of all
2. Modifies those provisions to the same extent for necessary internal requirements for the agreement
that other party in its relations with the reserving to enter into force in the two countries. Is the
State. Executive branch of government correct?
3. The reservation does not modify the provisions of
the treaty for the other parties to the treaty inter se. A: YES. The EDCA need not be submitted to the Senate
4. When a State objecting to a reservation has not for concurrence because it is in the form of a mere
opposed the entry into force of the treaty between executive agreement, not a treaty. Under the
itself and the reserving State, the provisions to Constitution, the President is empowered to enter into
which the reservation relates do not apply as executive agreements on foreign military bases, troops,
between the two States to the extent of the or facilities if (1) such agreement is not the instrument
reservation. that allows the entry of such and (2) if it merely aims to
implement an existing law or treaty.

Judicial Review of Treaties EDCA is in the form of an executive agreement since it

merely involves “adjustments in detail” in the
Even after ratification, the Supreme Court has the power

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implementation of the Mutual Defense Treaty and the 7. Lack of Representative’s Authority
Visiting Forces Agreement. These are existing treaties 8. Violation of jus cogens norm
between the Philippines and the U.S. that have already
been concurred in by the Philippine Senate and have Grounds for termination of a treaty (SCREW-STEM-
thereby met the requirements of the Constitution under DV)
Art XVIII, Sec 25. Because of the status of these prior
agreements, EDCA need not be transmitted to the Senate 1. Severance of diplomatic or consular relations
(Saguisag v. Executive Secretary, G.R. No. 212426, Jan. 12, 2. Conclusion of a subsequent treaty inconsistent
2016) between the same parties
--- 3. Doctrine of Rebus sic stantibus
4. The Emergence of new peremptory norm of general
international law renders void and terminates any
Applicable rules when there is conflict between a existing treaty in conflict with such norm
treaty and a statute 5. Outbreak of War between the parties to the treaty
6. Supervening impossibility of performance
The rule will depend on which court is deciding. 7. Termination of the treaty or withdrawal of a party in
accordance with the terms of the treaty
1. If it is an international court- it will uphold the treaty 8. Extinction of one of the parties to the treaty
obligation. A treaty, even if contrary to a later 9. Mutual agreement of all the parties to terminate the
statute, is binding in international law. treaty
2. If it is a domestic court- it will uphold local laws. 10. Denunciation of the treaty by one of the parties
3. When a treaty and domestic statute relate to the 11. Violation of the treaty by one of the parties
same subject- the court will try to give effect to both.
4. If they are inconsistent- the later in date will control, Doctrine of rebus sic stantibus
provided that the treaty stipulation is self-executing.
It states that a fundamental change of circumstances
Conflict between a treaty and a statute in the which determined the parties to accept a treaty, if it has
Philippine setting resulted in a radical transformation of the extent of the
obligations imposed by it, may under certain conditions,
In case of conflict between a treaty and a statute, the afford the party affected a ground to invoke the
following shall be followed: termination of the treaty.
1. The courts should harmonize both laws first.
2. If there exists an unavoidable contradiction between The change must have increased the burden of the
them, the principle of lex posterior derogat priori obligations to be executed to the extent of rendering
- a treaty may repeal a statute and a statute may performance essentially different from the original
repeal a treaty - will apply. The later one prevails. intention.

NOTE: In our jurisdiction, treaties entered into by the Requisites of rebus sic stantibus (Not-IR, Must-URIS)
executive are concurred by the Senate and takes the form
of a statute. 1. The change must not have been caused by the party
Invoking the doctrine
VFA as a treaty and as an executive agreement 2. The doctrine cannot operate Retroactively, i.e., it
must not adversely affect provisions which have
In the case of Bayan v. Zamora (G.R. No. 138570, Oct. 10, already been complied with prior to the vital change
2000), VFA was considered a treaty because the Senate in the situation
concurred via 2/3 votes of all its members. However, in 3. The change must have been Unforeseen or
the point of view of the US Government, it is merely an unforeseeable at the time of the perfection of the
executive agreement. treaty
4. The doctrine must be invoked within a Reasonable
Modification of a treaty time
5. The duration of the treaty must be Indefinite
GR: A treaty may not be modified without the consent of 6. The change must be so Substantial that the
all the parties. foundation of the treaty must have altogether
XPN: If allowed by the treaty itself, two states may disappeared
modify a provision only insofar as their countries are
concerned. Limitation on the application of the principle of
rebus sic stantibus
Grounds for invalidating a treaty (3C-FUEL-V)
The principle of rebus sic stantibus cannot be invoked as
1. Corruption of a representative of a State a ground for terminating or withdrawing from a treaty if:
2. Coercion of a representative of a State 1. The treaty establishes a boundary; or
3. Coercion of a State by threat or use of force 2. The fundamental change is the result of a breach by
4. Fraud the party invoking it of an obligation under the
5. Unconstitutionality Rule treaty or of any other obligation owed to any other
6. Error party to the treaty.

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1. De jure stateless person – stripped of his nationality

“Clean Slate” Rule by their former government and without having an
opportunity to acquire another
When one State ceases to exist and is succeeded by 2. De facto stateless person – one who possesses a
another on the same territory, the newly independent nationality whose country does not give him
State is not bound to maintain in force, or to become a protection outside his own country and who is
party to, any treaty by reason only of the fact that at the commonly referred to as refugee (Frivaldo v.
date of the succession of States the treaty was in force in COMELEC, G.R. No. 123755, June 28, 1996).
respect of the territory to which the succession of States
relates. Consequences of Statelessness (1995 Bar)

XPNs to the “Clean Slate” rule 1. No State can intervene or complain in behalf of the
Stateless person for an international delinquency
1. When the new State agrees to be bound by the committed by another State in inflicting injury upon
treaties made by its predecessor; him.
2. Treaties affecting boundary regime (utipossidetis) 2. He cannot be expelled by the State if he is lawfully in
3. Customary International Law its territory except on grounds of national security
or public order. (1994 Bar)
Most Favored Nation Clause (1997 Bar) 3. He cannot avail himself of the protection and
benefits of citizenship like securing for himself a
It is a pledge by a contracting party to a treaty to grant to passport or visa and personal documents.
the other party treatment not less favorable than that
which has been or may be granted to the “most favored” Rights of Stateless Persons
among other countries.
A Stateless person is not entirely without right,
The most favored nation clause is intended to establish protection or recourse under the Law of Nations. Under
the principle of equality of international treatment by the Convention in Relation to the Status of Stateless
providing that the citizens or subjects of the contracting Persons, the contracting States agree to accord the
nations may enjoy the privileges accorded by either stateless persons within their territories treatment at
party to those of the most favored nation (CIR v. S.C. least as favorable as that accorded their nationals with
Johnson and Son, Inc., 309 SCRA 87, 107-108). respect to:
1. Freedom of religion
It embodies the principle of non-discrimination. The 2. Access to the courts
clause has been commonly included in treaties of 3. Rationing of products in short supply
commercial nature. The principle means that any special 4. Elementary education
treatment given to a product from one trading partner 5. Public relief and assistance
must be made available for like products originating 6. Labor legislation
from or destined for other contracting partners. In 7. Social Security
practice, this generally refers to tariff concessions.
NOTE: They also agree to accord them treatment not less
favorable than that accorded to aliens generally in the
NATIONALITY AND STATELESSNESS same circumstances. The Convention also provides for
the issuance of identity papers and travel documents to
the Stateless persons.
Nationality
Status of foundlings under Philippine laws
It is membership in a political community with all its
concomitant rights and obligations. It is the tie that As a matter of law, foundlings are as a class, natural-born
binds the individual to his State, from which he can claim citizens. While the 1935 Constitution's enumeration is
protection and whose laws he is obliged to obey. silent as to foundlings, there is no restrictive language
NOTE: Citizenship has a more exclusive meaning in that it which would definitely exclude foundlings either. The
applies only to certain members of the State accorded deliberations of the 1934 Constitutional Convention
more privileges than the rest of the people who owe it show that the framers intended foundlings to be covered
allegiance. Its significance is municipal, not international. by the enumeration, pursuant to the amendment
proposed by Sr. Rafols. Though the Rafol’s amendment
Multiple Nationality was not carried out, it was not because there was any
objection to the notion that persons of "unknown
It is the possession by an individual of more than one parentage" are not citizens but only because their
nationality. It is acquired as the result of the concurrent number was not enough to merit specific mention.
application to him of the conflicting municipal laws of Foundlings are likewise citizens under international law.
two or more States claiming him as their national. The common thread of the Universal Declaration of
Human Rights, United Nations Convention on the Rights
Statelessness (1995 Bar) of the Child and the International Covenant on Civil and
Political Rights obligates the Philippines to grant
It is the condition or status of an individual who is either: nationality from birth and ensure that no child is

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stateless. This grant of nationality must be at the time of
birth, and it cannot be accomplished by the application of NOTE: No government can be held responsible for the
our present naturalization laws. act of rebellious bodies of men committed in violation of
Furthermore, the principles stated in Article 14 of the its authority, where it is itself guilty of no breach of good
1930 Hague Convention on Certain Questions Relating to faith, or of no negligence in suppressing insurrection.
the Conflict of Nationality Laws under which a foundling
is presumed to have the nationality of the country of Elements of State Responsibility
birth. While the Philippines is not a party to the Hague
Convention, it is a signatory to the Universal Declaration 1. An act or omission in violation of International Law
on Human Rights, which effectively affirms Article 14 of 2. Attributable to the State
the 1930 Hague Convention. (Poe v. Comelec, G.R. No. 3. Causing damage to a third State either directly or
221697, March 8, 2016) indirectly to a national of the third State.

Doctrine of Indelible Allegiance Kinds of State Responsibility

It states that an individual may be compelled to retain his 1. Direct State responsibility – Where the international
original nationality notwithstanding that he has already delinquency was committed by superior
renounced it under the law of another State whose government officials or organs like the chief of State
nationality he has acquired. or the national legislature, liability will attach
immediately as their acts may not be effectively
Doctrine of Effective Nationality prevented or reversed under the constitution or
laws of the State.
A person having more than one nationality shall be 2. Indirect State responsibility – Where the offense is
treated as if he had only one – either the nationality of committed by inferior government officials or by
the country in which he is habitually and principally private individuals. The State will be held liable
resident or the nationality of the country with which in only if, by reason of its indifference in preventing or
the circumstances he appears to be in fact most closely punishing it, it can be considered to have connived
connected. in effecting its commission.

NOTE: Also known as Nottebohm principle Requisites for the enforcement of the doctrine of
(International Court of Justice, Liechtenstein v. Guatemala, State Responsibility (NER)
1955) or the Genuine Link Doctrine
1. Nationality of the Claimant/The Doctrine of
Doctrine of Genuine Link Effective Nationality/The Genuine Link Doctrine
2. The injured alien must first Exhaust all local
It states that the bond of nationality must be real and remedies; and
effective in order that a State may claim a person as its 3. He must be Represented in the international claim
national for the purpose of affording him diplomatic for damages by his own State
protection.
Calvo Clause
Measures states have taken to prevent Statelessness
A stipulation by which an alien waives or restricts his
In the Convention on the Conflict of Nationality Laws of right to appeal to his own state in connection with any
1930, the Contracting States agree to accord nationality claim arising from the contract and agrees to limit
to persons born in their territory who would otherwise himself to the remedies available under the laws of the
be stateless. The Convention on the Reduction of local state.
Statelessness of 1961 provides that if the law of the
contracting States results in the loss of nationality, as a NOTE: This cannot be interpreted to deprive the alien’s
consequence of marriage or termination of marriage, state of the right to protect or vindicate his interests in
such loss must be conditional upon possession or case they are injured in another state, as such waiver can
acquisition of another nationality. legally be made not by the alien but by his own state.

Elements of an Internationally Wrongful Act (AB)

STATE RESPONSIBILITY
1. Act or omission is Attributable to the State under
international law; and
Doctrine of State Responsibility (2010 Bar) 2. Constitutes a Breach of an international obligation
of the State
A State may be held responsible for an international
delinquency, directly or indirectly, imputable to it which NOTE: Every internationally wrongful act of a State
causes injury to the national of another State. Liability entails the international responsibility of that State.
will attach to the State where its treatment of the alien
falls below the international standard of justice or where Acts or situations attributable to the State
it is remiss in according him the protection or redress
that is warranted by the circumstances.

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1. Acts of the State organs – Acts of State organs in 3. Restitution – Involves wiping out all the
their capacity provided by law or under instructions consequences of the breach and re-establishing the
of superiors situation which would probably have existed had
2. Acts of other persons – If the group of persons was in the act not been committed.
fact exercising elements of the governmental
authority in the absence or default of the official NOTE: It can either be in the form of legal
authorities and circumstances such as to call for the restitution or specific restitution.
exercise of those elements of authority. a. Legal Restitution is declaration that an
3. Acts of revolutionaries – Conduct of an insurrectional offending treaty, law, executive act, or
movement which becomes the new government of a agreement, is invalid.
State or part of a State. b. Specific Restitution is a restitution in kind or
payment of a sum corresponding to the value of
Theory of Objective or Strict Liability the restitution, and the award for losses
sustained which would not be covered by the
With respect to state responsibility, the theory provides first two.

that fault is unnecessary for State responsibility to be 4. Compensation – Payment of money as a valuation of
incurred. Its requisites are: the wrong done.
1. Agency
2. Casual connection between the breach and the act NOTE: The compensation must correspond to the
or omission imputable to the State. value which restitution in kind would bear; the
award of damages for loss sustained which would
Culpa (fault) is relevant when: not be covered by restitution in kind or payment in
place of it.
1. The breach results from acts of individuals not
employed by the state or from the activities of Pecuniary satisfaction vs. Compensation
licenses or trespassers on its territory;
2. A state engages in lawful activities, in which case BASIS PECUNIARY
COMPENSATION
responsibility may result from culpa in executing SATISFACTION
these lawful activities; A token of regret To make up for or
3. Determining the amount of damages; and repair the damage
4. Due diligence or liability for culpa is stipulated in a As to
acknowledgment of done
treaty. nature
wrongdoing
(“monetary sorry”)
Motive (intent) is relevant when:
State’s exercise of diplomatic protection
1. The existence of a deliberate intent to injure may
have an effect on the remoteness of the damage and When a State admits into its territory foreign
may help to establish the breach of duty. investments or foreign nationals, whether natural or
2. Motive and intent may be a specific element in juristic persons, it is bound to extend to them the
defining permitted conduct. protection of the law and assumes obligations
concerning the treatment to be afforded to them.
Relief available where a State is liable for an
internationally wrongful act These obligations, however, are neither absolute nor
unqualified. An essential distinction should be drawn
1. Declaratory relief – Declaration by a court that as to between:
the illegality of an act constitutes a measure of
satisfaction or reparation in the broad sense. 1. Obligations of the State towards the international
community as a whole- concern of all States. All States
NOTE: Available when this is, or the parties deem can be held to have a legal interest in their protection;
this, the proper way to deal with a dispute or when they are obligations erga omnes.
the object is not to give satisfaction for the wrong 2. Obligations the performance of which is the subject of
received but only to recognize the liability. diplomatic protection- cannot be held, when one such
obligation in particular is in question, in a specific case,
2. Satisfaction – A measure other than restitution or that all States have a legal interest in its observance (Case
compensation which an offending State is bound to Concerning Barcelona Traction, Light and Power
take. Company, Limited, Feb. 5, 1970).

NOTE: Its object is often either:

a. An apology and other acknowledgment of JURISDICTION OF STATES
wrongdoing
b. Punishment of individuals concerned
c. Taking of measures to prevent a recurrence In Public International Law, it is the right of a State to
exercise authority over persons and things within its

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boundaries subject to certain exceptions. and crimes against the Jewish people. He was
convicted of all 15 counts and sentenced to death.
TERRITORIALITY PRINCIPLE
Does the District Court of Jerusalem have
A state has absolute, but not necessarily exclusive, power jurisdiction to try the case in light of the fact that
to prescribe, adjudicate and enforce rules of conduct that Eichmann is a foreign national and crimes were
occurs within its territory. (2005, 2009 Bar) committed on foreign territory?

NOTE: An aspect of this principle is the “Effects A: The principle of territorial sovereignty merely
Doctrine” – which provides that a state has jurisdiction requires that the State exercises its power to punish
over acts occurring outside its territory but having within its own borders, not outside them; that subject to
effects within it. this restriction every State may exercise a wide
discretion as to the application of its laws and the
Extra-territoriality jurisdiction of its courts in respect of acts committed
outside the State; and that only in so far as it is possible
The exemption of foreign persons from the jurisdiction of to point to a specific rule prohibiting the exercise of this
the State of residence and it arises from treaty discretion. That view was based on the following two
provisions. grounds: (1) It is precisely the conception of State
sovereignty which demands the preclusion of any
NATIONALITY PRINCIPLE AND STATELESSNESS presumption that there is a restriction on its
independence; and (2) Even if it is true that the principle
Nationality Doctrine of the territorial character of criminal law is firmly
established in various States, it is no less true that in
A State may exercise jurisdiction over its nationals, with almost of such States criminal jurisdiction has been
respect to their conduct, whether within or outside its extended so as to embrace offenses committed outside
territory. its territory.

(For more extensive discussion on Nationality and However, it is the universal character of the crimes in
Statelessness, please refer to the previous discussion question which vests in every State the power to try
devoted solely on that matter) those who participated in the preparation of such crimes,
and to punish them therefor. It follows that the State
PROTECTIVE PRINCIPLE which prosecutes and punishes a person for that offense
acts solely as the organ and agent of the international
Any State has the right to punish acts even if committed community, and metes out punishment to the offender
outside its territory, when such acts constitute attacks for his breach of the prohibition imposed by the law of
against its security, as long as that conduct is generally nations (Attorney-General of the Government of Israel v.
recognized as criminal by states in the international Eichmann, Israel Sup. Ct. 1962)
community. (2009 Bar) ---

Examples are plots to overthrow the government, forging PASSIVE PERSONALITY PRINCIPLE
its currency, and plot to break its immigration
regulations. It authorizes states to assert jurisdiction over offenses
committed against their citizens abroad. It recognizes
UNIVERSALITY PRINCIPLE that each state has a legitimate interest in protecting the
safety of its citizens when they journey outside national
Certain offenses are so heinous and so widely boundaries.
condemned that any state that captures an offender may
prosecute and punish that person on behalf of the Act of State Doctrine
international community regardless of the nationality of
the offender or victim or where the crime was A State should not inquire into the legal validity of the
committed. (2005 Bar) public acts of another State done within the territory of
the latter (Nachura, 2009).
---
Q: Prior to the outbreak of WWII, Adolf Eichmann CONFLICTS OF JURISDICTION
was an Austrian by birth who volunteered to work
for the Security Service in Berlin. He rose through Modes of addressing conflicts of jurisdiction
the ranks and eventually occupied the position of
Referant for Jewish Affairs. He oversaw the transport 1. Balancing Test – It is a judicial doctrine whereby a
and deportation of Jewish persons and explored the court measures competing interest–as between
possibility of setting up a slave Jewish state in
Madagascar. individual rights and governmental powers, or
between state authority and federal supremacy –
He was captured by Israeli Security Forces in and decides which interest should prevail. (Black’s
Argentina and handed over to the District Court of Law Dictionary)
Jerusalem to stand for war crimes against humanity

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The court employed a tripartite analysis to In international law, it is the competence of every State
determine whether to assume jurisdiction or not. inferred from its territorial supremacy to allow a
First, was there an actual or intended effect on prosecuted alien to enter and to remain on its territory
American foreign commerce. Second, is the effect under its protection and thereby grant asylum to him.
sufficiently large to present a cognizable injury to
the plaintiffs and, therefore, a civil violation of the Refugee
anti-trust laws. Third, are the interests of, and link
to, the United States including effects on American Any person who is outside the country of his nationality
foreign commerce sufficiently strong, vis-a-vis those or the country of his former habitual residence because
of other nations, to justify an assertion of he has or had well-founded fear of persecution by reason
extraordinary authority (Timberlane Lumber Co. v. of his race, religion, nationality, membership of a political
Bank of America, 549 F2d 597). group or political opinion and is unable or, because of
such fear, is unwilling to avail himself of the protection of
2. International Comity – Even when a state has basis the government of the country of his nationality, or, if he
for exercising jurisdiction, it will refrain from doing has no nationality, to return to the country of his former
so if its exercise will be unreasonable. habitual residence.
Unreasonableness is determined by evaluating
various factors: (L2C2E) Elements before one may be considered as a refugee
a. Link of the activity to the territory of the (ONPer)
regulating state
b. the Connection, such as nationality, residence, 1. The person is Outside the country of his nationality,
or economic activity, between the regulating or in the case of Stateless persons, outside the
state and the person principally responsible for country of habitual residence;
the activity to be regulated 2. The person lacks National protection;
c. the Character of the activity to be regulated 3. The person fears Persecution in his own country.
d. the existence of justified Expectations that
might be protected or hurt by the regulation NOTE: The second element makes a refugee a Stateless
e. the Likelihood of conflict with regulation by person. Only a person who is granted asylum by another
another state. State can apply for refugee status; thus the refugee
3. Forum non conveniens – If in the whole treaties imply the principle of asylum.
circumstances of the case it be discovered that there
is a real unfairness to one of the suitors in Refugees v. Internally displaced persons
permitting the choice of a forum which is not the
natural or proper forum, either on the ground of Refugees are people who, owing to well founded fear of
convenience of trial or the residence or domicile of being persecuted for reasons of race, religion, nationality,
parties or of its being the locus contractus, or locus membership of a particular social group or political
solutionis, then the doctrine of forum non opinion, are outside the country of his nationality, are
conveniens is properly applied. unable or owing to such fear, are unwilling to avail
themselves of the protection of that country, or who not
NOTE: It is the discretionary power that allows having a nationality and being outside the country of
courts to dismiss a case where another court, or their former habitual residence as a result of such events,
forum, is much better suited to hear the case (Piper are unable or, owing to such fear are unwilling to return
Aircraft v. Reyno). to it. (Sec. A par. 2, United Nations Convention Relating to
the Status of Refugees, 1951)

TREATMENT OF ALIENS While internally displaced persons are those who have
been forced to flee their homes, suddenly or
unexpectedly in large numbers as a result of armed
Standards to be used by States in treating aliens conflict, internal strife, systematic violation of human
within their territory rights, or natural or man-made disaster, and, who are
within their territory of their country (Analytical Report
1. National treatment/equality of treatment – Aliens of the United Nations’ Secretary-General on Internally
are treated in the same manner as nationals of the Displaced Persons, February 14, 1992)
State where they reside.
2. Minimum international standard – However harsh Principle of Non-Refoulment
the municipal laws might be, against a State’s own
citizens, aliens should be protected by certain Posits that a State may not deport or expel refugees to
minimum standards of humane protection. the frontiers of territories where their life or freedom
would be put in danger or at risk (Magallona, 2005).
NOTE: States protect aliens within their jurisdiction in
the expectation that their own nationals will be properly EXTRADITION
treated when residing or sojourning abroad. (1996 BAR)

Right of asylum The right of a foreign power, created by treaty, to demand

the surrender of one accused or convicted of a crime

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within its territorial jurisdiction, and the correlative duty b. they show compliance with the Extradition
of the other State to surrender Treaty and Law; and
c. the person sought is extraditable.
Basis of extradition At his discretion, the judge may require the
submission of further documentation or may
The extradition of a person is required only if there is a personally examine the affiants and witnesses of the
treaty between the State of refuge and the State of origin. petitioner. If, in spite of this study and examination,
As a gesture of comity, however, a State may extradite no prima facie finding is possible, the petition may
anyone. Furthermore, even with a treaty, crimes which be dismissed at the discretion of the judge.
are political in character are exempted. 5. On the other hand, if the presence of a prima facie
case is determined, then the magistrate must
FUNDAMENTAL PRINCIPLES immediately issue a warrant for the arrest of the
extraditee, who is at the same time summoned to
1. Based on the consent of the State expressed in a answer the petition and to appear at scheduled
treaty summary hearings.
2. Principle of specialty – A fugitive who is extradited 6. Hearing (provide counsel de officio if necessary);
may be tried only for the crime specified in the 7. Appeal to CA within ten days whose decision shall
request for extradition and included in the list of be final and executory;
offenses in the extradition treaty, unless the 8. Decision forwarded to DFA through the DOJ;
requested State does not object to the trial of such 9. Individual placed at the disposal of the authorities of
person for the unlisted offense (1993 Bar) requesting State – costs and expenses to be
3. Any person may be extradited, whether he is a shouldered by requesting State.
national of the requesting State, of the State of
refuge or of another State. He need not be a citizen DISTINGUISHED FROM DEPORTATION
of the requesting State.
4. Political or religious offenders are generally not Extradition vs. Deportation (1993 Bar)
subject to extradition. (2002 Bar)
BASIS EXTRADITION DEPORTATION
NOTE: Attentat clause is a provision in an Effected at the Unilateral act of
extradition treaty which states that the murder or As to
request of the the local State
assassination of the head of a state or any member authority
State of origin
of his family will not be considered as a political Based on offenses Based on causes
offense and therefore extraditable. As to cause committed in the arising in the local
5. The offense must have been committed within the State of origin State
territory of the requesting State or against its Calls of the return Undesirable alien
interest of the fugitive to may be deported
6. Double criminality rule – The act for which the As to effect the State of origin to a State other
extradition is sought must be punishable in both the than his own or
requesting and requested States (1991, 2007 Bar) the State of origin.

Common bars to extradition Due process in extradition proceeding

1. Failure to fulfill dual criminality Q: Is a respondent in an extradition proceeding not

2. Political nature of the alleged crime entitled to notice and hearing before the issuance of
3. Possibility of certain forms of punishment a warrant of arrest?
4. Jurisdiction
5. Citizenship of the person in question A: NO.
1. On the Basis of the Extradition Law
PROCEDURE
It is significant to note that Section 6 of PD 1069, our
1. File/issue request through diplomatic Extradition Law, uses the word “immediate” to qualify
representative with: the arrest of the accused. Hearing entails sending
a. Criminal charge and warrant of arrest notices to the opposing parties, receiving facts and
b. Recital of facts arguments from them, and giving them time to prepare
c. Text of applicable law designating the offense and present such facts and arguments. Arrest
d. Pertinent papers subsequent to a hearing can no longer be considered
e. Decision of conviction “immediate.” The law could not have intended the word
2. DFA forwards request to DOJ as a mere superfluity but, on the whole, as a means of
3. DOJ files petition for extradition with RTC imparting a sense of urgency and swiftness in the
4. Upon receipt of a petition for extradition and its determination of whether a warrant of arrest should be
supporting documents, the judge must study them issued.
and make, as soon as possible, a prima facie finding
whether: By using the phrase “if it appears,” the law further
a. they are sufficient in form and substance; conveys that accuracy is not as important as speed at
such early stage. The trial court is not expected to make

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an exhaustive determination to ferret out the true and circumstances.

actual situation, immediately upon the filing of the
petition. From the knowledge and the material then Rights of a person arrested and detained in another
available to it, the court is expected merely to get a good State
first impression -- a prima facie finding -- sufficient to
make a speedy initial determination as regards the arrest 1. Right to have his request complied with by the
and detention of the accused. receiving State to so inform the consular post of his
condition
2. On the Basis of the Constitution 2. Right to have his communication addressed to the
consular post forwarded by the receiving State
Even Section 2 of Article III of our Constitution, which is accordingly
invoked by Jimenez, does not require a notice or a 3. Right to be informed by the competent authorities
hearing before the issuance of a warrant of arrest. To of the receiving State without delay his rights as
determine probable cause for the issuance of arrest mentioned above
warrants, the Constitution itself requires only the
examination -- under oath or affirmation -- Retroactive application of extradition
of complainants and the witnesses they may
produce. There is no requirement to notify and hear In Wright v. Court of Appeals (G.R. No.113213, August
the accused before the issuance of warrants of arrest 15,1994), it was held that the retroactive application of
(U.S. v. Purganan, G.R. No. 148571, Sept. 24, 2002). the Treaty of Extradition does not violate the prohibition
--- against ex post facto laws, because the Extradition Treaty
--- is neither a piece of criminal legislation nor a criminal
Q: Does an Extraditee’s have a right of access to the procedural statute. It merely provided for the extradition
evidence against him? of persons wanted for offenses already committed at the
time the treaty was ratified.
A: It depends. During the executive phase of an
extradition proceeding, an extraditee does not have the
right of access to evidence in the hands of the
government. But during the judicial phase he has INTERNATIONAL HUMAN RIGHTS LAW
(Secretary v. Judge Lantion, GR. No. 139465, Oct. 17, 2000)
---
Human Rights
Nature of Extradition Proceeding
Those liberties, immunities and benefits, which all
Extradition is not a criminal proceeding, thus, an human beings should be able to claim ‘as of right’ of the
extradition proceeding does not call into operation all society in which they live – Louis Henkin, “Human
the rights of an accused provided in the bill of rights. Rights”
(1996, 2005 Bar)
International Human Rights Law
Validity of a petition for bail in extradition cases
The law which deals with the protection of individuals
Sec. 11, Art. II of our Constitution which provides: “The and groups against violations by governments of their
State values the dignity of every human person and internationally guaranteed rights, and with the
guaranteed full respect for human rights.” The promotion of these rights (Buergenthal).
Philippines, therefore, has the responsibility of
protecting and promoting the right of every person to NOTE: International human rights are divided into 3
liberty and due process, ensuring that those detained or generations, namely:
arrested can participate in the proceedings before a 1. First generation: civil and political rights
court, to enable it to decide without delay on the legality 2. Second generation: economic, social and cultural
of the detention and order their release if justified. rights
3. Third generation: right to development, right to
The Philippine authorities are under obligation to make peace and right to environment
available to every person under detention such remedies
which safeguards their fundamental right to liberty. Classification of Human Rights
These remedies include the right to be admitted to bail
(Gov’t of Hong Kong Special Administrative Region v. 1. Individual rights
Olalia, Jr., G.R. No. 153675, April 19, 2007). 2. Collective rights (right to self-determination of
people; the permanent sovereignty over natural
Requisites for granting bail in extradition cases resources)

The possible extraditee must show upon a clear and Main instruments of human rights
convincing evidence that:
1. He will not be a flight risk or a danger to the 1. Universal Declaration of Human Rights
community, 2. The International Covenant on Economic, Social and
2. There exist special, humanitarian and compelling Cultural Rights

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3. International Covenant on Civil and Political Rights nationality or religion; entitled to equal rights to
and its two Optional Protocols marriage, during marriage and dissolution; the
family is the natural and fundamental group of
NOTE: The Philippines is a signatory to the International society and is entitled to protection by society and
Convention on the Protection of the Rights of All Migrant State.
Workers and Members of Their Families. This instrument 17. Right to own property alone as well as in
is a multilateral treaty governing the protection of association with others; right against arbitrary
migrant workers and families. Concluded on December deprivation of such property
18, 1990, it entered into force on July 1, 2003 after the 18. Right to freedom of thought, conscience and religion
threshold of 20 ratifying states was reached in March 19. Right to freedom of opinion and expression
2003. The Committee on Migrant Workers (CMW) 20. Right to freedom of peaceful assembly and
monitors implementation of the Convention, and is one association; no one may be compelled to belong to
of the seven UN-linked human rights treaty bodies. an association
21. Right to suffrage; right to take part in the
UNIVERSAL DECLARATION OF HUMAN RIGHTS government of one’s country, directly or through
(UDHR) representatives; right of equal public service in
one’s country
The basic international statement of the inalienable 22. Right to social security
rights of human beings. It is the first comprehensive 23. Right to work/labor, free choice of employment, just
international human rights instrument. It covers Civil and favorable conditions of work; right to equal pay
and Political rights and economic, social and cultural for equal work; right to form and join trade unions
rights. 24. Right to rest and leisure, including reasonable
working hours and periodic holidays with pay
NOTE: Rights covered by UDHR are customary 25. Right to a standard of living adequate for the health
international law, hence, even during the times when the and being of one’s self and his family; motherhood
bill of rights under the Constitution are inoperative, and childhood are entitled to special care and
rights under UDHR remained in effect (Republic v. assistance.
Sandiganbayan, G.R. No. 104768, July 21, 2003). 26. Right to education
27. Right to freely participate in the cultural life of the
Basic Rights Guaranteed by the UDHR community, enjoy the arts and share in scientific
advancement
1. All human beings are born free and equal in dignity
and rights. Under the Declaration, everyone is entitled to a social
2. Everyone is entitled to all the rights and freedoms in and international order in which the rights and freedoms
this Declaration, without distinction of any kind in this Declaration can be fully realized. The exercise of
such as race, color, sex, religion, property, or birth. these rights and freedoms are subject only to such
No distinction shall also be made on the basis of the limitations as are determined by law, for the purpose of
political or international status of a country or recognition and respect of rights of others, for public
territory to which a person belongs. order and general welfare.
3. Right to life, liberty and security of person.
4. Right against slavery or servitude. INTERNATIONAL COVENANT ON CIVIL AND
5. Right against torture or to cruel, inhuman and POLITICAL RIGHTS
degrading treatment or punishment
6. Right to be recognized everywhere as a person International Covenant on Civil and Political Rights
before the law.
7. Right to equal protection of the law This is a multilateral treaty adopted by the United
8. Right to an effective remedy before courts for acts Nations General Assembly on 16 December 1966, and in
violating fundamental rights force from 23 March 1976. It commits its parties to
9. Right against arbitrary arrest, detention or exile. respect the civil and political rights of individuals. As of
10. Right to a fair and public hearing by an independent April 2014, the Covenant has 74 signatories and 168
and impartial tribunal parties.
11. Right to be presumed innocent until proven guilty
12. Right to privacy, family, home or correspondence Rights guaranteed in the International Covenant on
13. Right to freedom of movement and residence; right Civil and Political rights
to leave any country, including one’s own and to
return to one’s own country 1. Right to self-determination
14. Right to seek and enjoy in another country asylum 2. Right to an effective remedy
from persecution; however, this may not be invoked 3. Equal right of men and women to the enjoyment of
in the case of prosecutions genuinely arising from all the civil and political rights
non-political crimes or acts contrary to the 4. Right to life
principles of the United Nations 5. Not to be subjected to torture or to cruel, inhuman
15. Right to a nationality and right against arbitrary or degrading treatment or punishment. In
deprivation of such right particular, freedom from medical or scientific
16. Right to marry, entered into freely and with full experimentation except with his consent (1992,
consent, without any limitation due to race, 2010 Bar)

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6. Freedom from slavery and servitude Other Cruel, Inhuman or Degrading Treatment or
7. Right to liberty and security of person Punishment [UNCTO] Effective June 26, 1987).
8. Right to be treated with humanity and with respect
for the inherent dignity of the human person NOTE: It does not include pain or suffering arising only
9. No imprisonment on the ground of inability to fulfill from, inherent in or incidental to lawful sanctions.
a contractual obligation
10. Right to liberty of movement and freedom to choose Obligations of the State Parties in the UNCTO
his residence
11. Right to a fair and public hearing by a competent, 1. No exceptional circumstances whatsoever, whether
independent and impartial tribunal established by a state of war or a threat or war, internal political
law instability or any other public emergency or any
12. No one shall be held guilty of an criminal offense on order from a superior officer or a public authority
account of any act or omission which did not may be invoked as a justification of torture.
constitute a criminal office, under national or 2. No State party shall expel, return (“refouler”) or
international law, at the time when it was extradite a person to another State where there are
committed substantial grounds for believing that he would be
13. Right to recognition everywhere as a person before in danger of being subjected to torture.
the law 3. All acts of torture are offenses under a State Party’s
14. Right to privacy criminal law.
15. Right to freedom of thought, conscience and religion 4. State Parties shall afford the greatest measure of
16. Right to freedom of expressions assistance in connection with civil proceedings
17. Right of peaceful assembly brought in respect of any of the offences
18. Right of freedom of association 5. To ensure that education and information regarding
19. Right to marry and to found a family the prohibition against torture are fully included on
20. Right to such measures of protection as are required persons involved in the custody, interrogation or
by his status as a minor, name and nationality treatment of any individual subject to any form of
21. Right to participation, suffrage and access to public arrest, detention, or imprisonment.
service 6. To keep under systematic review interrogation
22. Right to equal protection of the law rules, instructions, methods and practices as well as
23. Right of minorities to enjoy their own culture, to arrangements for the custody and treatment of
profess and practice their religion and to use their persons subjected to any form of arrest, detention
own language. or imprisonment in any territory under its
jurisdiction, with a view to preventing any case of
NOTE: torture.
GR: In times of public emergency which threatens the 7. To ensure a prompt and impartial investigation
life of the nation and the existence of which is officially wherever there is reasonable ground to believe that
proclaimed, parties may take measures to derogate from an act of torture has been committed
their obligations to the extent strictly required by the 8. To ensure that an individual subjected to torture
exigencies of the situation. has the right complain and have his case promptly
and impartially examined by competent authorities
XPNs: There can be no derogation from the following: 9. To ensure that the victim obtains redress and has an
1. Right to life enforceable right to fair and adequate compensation
2. Freedom from torture or cruel, inhuman or 10. To ensure that any statement established to have
degrading punishment been made as a result of torture shall not be invoked
3. Freedom from slavery as evidence in any proceedings, except against a
4. Freedom from imprisonment for failure to fulfill a person accused of torture as evidence that the
contractual obligation statement was made.
5. Freedom from ex post facto laws 11. To prevent in any territory under its jurisdiction
6. Right to recognition everywhere as a person before other acts of cruel, inhuman or degrading treatment
the law or punishment which do not amount to torture
7. Freedom of thought, conscience and religion when such acts are committed by or at the
instigation of or with the consent of acquiescence of
Torture a public official or other person acting in an official
capacity.
Any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person Instances when a state party may establish its
for such purposes as obtaining from him or a third jurisdiction over offenses regarding torture
person, information or a confession, punishing him for
an act he or a third person has committed or is suspected 1. When the offenses are committed in any territory
of having committed, or intimidating or coercing him or a under its jurisdiction or on board a ship or aircraft
third person, or for any reason based on discrimination registered in the State;
of any kind, when such pain or suffering is inflicted by or 2. When the alleged offender is a national of that State;
at the instigation of or with the consent or acquiescence 3. When the victim was a national of that State if that
of a public official or other person acting in an official State considers it appropriate;
capacity (United Nations Convention against Torture and

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4. Where the alleged offender is present in any 1. Parties to armed conflict are prohibited from
territory under its jurisdiction and it does not employing weapons or means of warfare that cause
extradite him. unnecessary damage or excessive suffering
(Principle of prohibition of use of weapons of a nature
NOTE: Nos. 1 to 3 are considered as extraditable to cause superfluous injury or unnecessary suffering)
offences. In the absence of an extradition treaty, the 2. Parties to armed conflict shall distinguish between
UNCTO may be considered as the legal basis for civilian populace from combatants and spare the
extradition. Such offenses shall be treated, for the former from military attacks (Principle of distinction
purpose of extradition, as if they have been committed between civilians and combatants)
not only in the place in which they occurred but also in 3. Persons hors de combat and those who do not take
the territories of the State required to establish their part in hostilities are entitled to respect for their
jurisdiction. lives and their moral and physical integrity. They
shall be protected and treated humanely without
INTERNATIONAL COVENANT ON ECONOMIC, any adverse distinction.
SOCIAL, AND CULTURAL RIGHTS 4. It is prohibited to kill or injure an enemy who
surrenders or who is a hors de combat.
International Covenant on Economic, Social and 5. The wounded and the sick shall be protected and
Cultural Rights cared for by the party who is in custody of them.
Protection shall cover medical personnel,
It is a multilateral treaty adopted by the United Nations establishments, transports and equipment. The
General Assembly on 16 December 1966, and in force emblem of Red Cross or the Red Crescent is a sign of
from 3 January 1976. It commits its parties to work such protection and must be respected.
toward the granting of economic, social, and cultural 6. Parties who captured civilians and combatants shall
rights. As of 2015, the Covenant has 164 parties. respect the latter’s rights to life, dignity, and other
personal rights.
Rights guaranteed thereunder
Essential rules of IHL
1. Right of Self Determination
2. Right to work and accompanying rights thereto 1. The parties to a conflict must at all times distinguish
3. Right to Social Security and other social rights between the civilian population and combatants.
4. Adequate standard of living which includes: 2. Neither the civilian population as a whole nor
a. Right to adequate housing individual civilians may be attacked
b. Right to adequate food 3. Attacks may be made sole against military
c. Right to adequate clothing objectives.
5. Right to health 4. People who do not or can no longer take part in the
6. Right to education hostilities are entitled to respect for their lives and
7. Cultural Rights for their physical and mental integrity and must be
treated with humanity, without any unfavorable
distinction whatever.
5. It is forbidden to kill or wound an adversary who
surrenders or who can no longer take part in the
INTERNATIONAL HUMANITARIAN LAW (IHL) fighting.
AND NEUTRALITY 6. Neither the parties to the conflict nor members of
their armed forces have an unlimited right to choose
methods and means of warfare.
International Humanitarian Law (IHL) 7. It is forbidden to use weapons or methods of
warfare that are likely to cause unnecessary losses
A set of rules which seek, for humanitarian reasons, to and excessive suffering.
limit the effects of armed conflict. It protects persons 8. The wounded and sick must be collected and cared
who are not or are no longer participating in the for by the party to the conflict which has them in its
hostilities and restricts the means and methods of power.
warfare. International humanitarian law is also known as 9. Medical personnel and medical establishments,
the law of war or the law of armed conflict. transports and equipment must be spared. The red
cross or red crescent is the distinctive sign
Importance of IHL indicating that such persons and objects must be
respected.
It is one of the most powerful tools the international 10. Captured combatants and civilians who find
community has at its disposal to ensure the safety and themselves under the authority of the adverse party
dignity of people in times of war. It seeks to preserve a are entitled to respect for their lives, their dignity,
measure of humanity, with the guiding principle that their personal rights and their political, religious
even in war there are limits. and other convictions and must be protected against
all acts of violence or reprisals; entitled to exchange
Fundamental principles of IHL of news with their families and receive aid and
enjoy basic judicial guarantees.

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Application of IHL a. Distinguish between combatants and civilians,

and to refrain from attacking civilians;
IHL concerns two situations: b. Care for the wounded and sick and protect
1. International armed conflicts, which involve at least medical personnel;
two countries; c. Ensure that the dignity of prisoners of war and
2. Armed conflicts that take place in one country (such civilian internees is preserved by allowing
as those between a government and rebel forces). visits by International Committee of the Red
Cross delegates.
NOTE: IHL applies to all parties to a conflict regardless
of who started it. International Humanitarian Law (IHL) vs. Human
Rights Law
“New” conflicts covered by the IHL
INTERNATIONAL
HUMAN RIGHTS LAW
1. Anarchic conflicts – It is a situation where HUMANITARIAN LAW
armed groups take advantage of the weakening or Application
breakdown of the State structures in an attempt to grab Situations of armed conflict Applicable at all times in
power. only. war and peace alike.
2. Those in which group identity becomes a focal Permissibility of derogation
point – These groups exclude the adversary through No derogations are Some human rights treaties
“ethnic cleansing” which consists in forcibly displacing permitted under IHL permit governments to
or even exterminating populations. This strengthens because it was conceived derogate from certain
group feeling to the detriment of the existing national for emergency situations rights, in situations of
identity, ruling out any possibility of coexistence with namely armed conflict. public emergency.
other groups. Purpose
Aims to protect people who Tailored primarily for
Branches of IHL do not or are no longer peacetime, and applies to
taking part in hostilities. everyone. Their principal
1. Law of Geneva – Designed to safeguard military The rules embodied in IHL goal is to protect
personnel who are no longer taking part in the impose duties on all parties individuals from arbitrary
fighting and people not actively participating in the of a conflict. behavior by their own
war. governments.
Consequence to states
NOTE: It includes the:
a. Wounded and Sick in the Field; Obliges states to take States are bound by human
b. Wounded, Sick and Shipwrecked at Sea; practical and legal rights law to accord
c. Prisoners of War; and measures, such as enacting national law with
d. Civilians. penal legislation and international obligations.
disseminating IHL.
2. Law of the Hague – Establishes the rights and Applicable mechanisms
obligations of belligerents in the conduct of military Provides for several Implementing mechanisms
operations, and limits the means of harming the mechanisms that help its are complex and, contrary
enemy. implementation. Notably, to IHL include regional
states are required to systems. Supervisory
NOTE: Belligerents are inhabitants of a State who ensure respect also by bodies, e.g. the UN
rise up in arms for the purpose of overthrowing the other states. Provision is Commission on Human
legitimate government. also made for inquiry Rights (UNCHR), are either
procedure, a Protecting based on the UN Charte or
Persons protected under IHL Power mechanism, and the provided for in specific
International Fact-Finding treaties.
IHL protects those who are not, or no longer, Commission. In addition,
participating in hostilities, such as: the International The UNCHR have developed
1. Civilians; Committee of the Red Cross a mechanism of special
2. Medical and religious military personnel; (ICRC) is given a key role in rapporteurs and working
3. Wounded, shipwrecked and sick combatants; ensuring respect for the groups, whose task is to
4. Prisoners of war. humanitarian rules. monitor and report on
human rights situations
NOTE: Recognizing their specific needs, IHL grants either by country or by
women and children additional protection. topic. Its role is to enhance
the effectiveness of the UN
Protection under IHL human rights machinery
and to build up national,
1. IHL prohibits the use of weapons which are regional and international
particularly cruel or which do not distinguish capacity to promote and
between combatants and civilians. protect human rights and to
2. The parties to a conflict are required to: disseminate human rights

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texts and information. NOTE: An army of occupation can only take
Human rights also provide possession of the cash, funds, and property liable to
for the establishment of requisition belonging strictly to the State, depots of
committees of independent arms, means of transport, stores and supplies, and,
experts charged with generally, all movable property of the State which
monitoring their may be used for military operations. Railway plant,
implementation. Certain land telegraphs, telephones, steamers, and other
regional treaties (European ships, apart from cases governed by maritime law,
and American) also as well as depots of arms and, generally, all kinds of
establish human rights war material, even though belonging to companies
courts. or to private persons, are likewise material which
may serve for military operations, but they must be
NOTE: IHL and International human rights law restored at the conclusion of peace, and indemnities
(hereafter referred to as human rights) are paid for them (Laws and Customs of War on Land
complementary. Both strive to protect the lives, health (Hague II)[ July 29, 1899], Art. 53).
and dignity of individuals, albeit from a different angle.
Reprisal (1991 Bar)
War
A retaliatory action against an enemy in wartime. It is an
Contention between two States, through their armed otherwise illegal act done in response to a prior illegal
forces, for the purpose of overpowering the other and act by an enemy, proportionate to the original wrong and
imposing such conditions of peace as the victor pleases. designed to compel the enemy to desist from his illegal
acts on the battlefield. Under such circumstances the law
Instances when force is allowed of armed conflicts recognizes the otherwise illegal acts as
legal. (The Naulilaa Case, involving Portugal and
Under the UN Charter, the use of force is allowed only in Germany)
two instances, to wit:
1. In the exercise of the inherent right of self-defense; Retorsion (1991, 2010 Bar)
and (1998, 2002, 2009 Bar) It is an unfriendly act which may be taken by one state
2. In pursuance of the so-called enforcement action against another. It may be in response to an
that may be decreed by the Security Council. internationally wrongful conduct or an unfriendly act but
which is nonetheless lawful.
Steps in the Commencement of a war
Elements:
1. Declaration of war 1. it is unfriendly;
2. Rejection of an ultimatum 2. it is lawful; and
3. Commission of an act of force regarded by at least 3. it is remedial in character
one of the parties as an act of war.
Because the act is legitimate, no responsibility is engaged
Declaration of War in international law, and the state taking the retorsion
has a wide discretion as to what unfriendly actions it
A communication by one State to another informing the may implement, and to what extent. (The Settlement of
latter that the condition of peace between them has International Disputes: The Contribution of Australia and
come to an end and a condition of war has taken place. New Zealand
By Nii Lante Wallace-Bruce)
Ultimatum
Tests in determining the enemy character of
A written communication by one State to another which individuals
formulates, finally and categorically, the demands to be
fulfilled if forcible measures are to be averted. 1. Nationality test – If they are nationals of the other
belligerent, wherever they may be.
Effects of the outbreak of war 2. Domiciliary test – If they are domiciled aliens in the
territory of the other belligerent, on the assumption
1. Laws of peace are superseded by the laws of war. that they contribute to its economic resources.
2. Diplomatic and consular relations between the 3. Activities test – If, being foreigners, they
belligerents are terminated. nevertheless participate in the hostilities in favor of
3. Treaties of political nature are automatically the other belligerent.
cancelled, but those which are precisely intended to 4. Territorial or Commercial Domicile Test – In matters
operate during war such as one regulating the referring to economic warfare
conduct of hostilities, are activated. 5. Controlling Interest Test – This test is applied to
4. Enemy public property found in the territory of corporation in addition to the place of incorporation
other belligerent at the outbreak of the hostilities is test. A corporation is considered as enemy if it:
with certain exceptions, subject to confiscation. a. is incorporated in an enemy territory;
b. is controlled by individuals bearing enemy
character.

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The suspension of hostilities within a certain area or in

Principle of Distinction the entire region of the war, agreed upon by the
belligerents, usually for the purpose of arranging the
Parties to an armed conflict must at all times distinguish terms of the peace.
between civilian and military targets and that all military
operations should only be directed at military targets. Armistice vs. Suspension of arms

Participants in war SUSPENSION OF

BASIS ARMISTICE
ARMS
1. Combatants – those who engage directly in the As to Political Military
hostilities, and purpose
2. Non-combatants – those who do not, such as women Usually in May be oral
and children. As to form
writing
Only by the May be concluded
Combatants As to who
commanders- by the local
may
in-chief commanders
Those individuals who are legally entitled to take part in conclude
of the
hostilities. These include: belligerent
1. Regular Forces (RF) – members of the armed forces governments
except those not actively engaged in combat. These
are the army, navy, and air force. Non-combatant Ceasefire
members of the armed forces include: chaplains,
army services and medical personnel. An unconditional stoppage of all hostilities usually
2. Irregular Forces (IF) – also known as franctireurs ordered by an international body like the United Nations
consist of militia and voluntary corps. These are Security Council for the purpose of settling the
members of organized resistance groups, such as differences between the belligerents.
the guerrillas. They are treated as lawful
combatants provided that they are: Truce
a. Being commanded by a person responsible for
his subordinates; A conditional ceasefire for political purposes.
b. Wearing a fixed distinctive sign or some type of
uniform; Capitulation
c. Carrying arms openly; and
d. Obeying the laws and customs of war. The surrender of military forces, places or districts, in
3. Non-privileged Combatants (NPC) – individuals who accordance with the rules of military honor.
take up arms or commit hostile acts against the
enemy without belonging to the armed forces or Basic principles that underlie the rules of warfare
forming part of the irregular forces. If captured, they
are not entitled to the status of prisoners of war. 1. The Principle of Military Necessity – The belligerent
4. Citizens who rise in a “levee en masse” – The may employ any amount of force to compel the
inhabitants of unoccupied territory who, on approach complete submission of the enemy with the least
of the enemy, spontaneously take arms to resist the possible loss of lives, time and money.
invading troops without having time to organize
themselves, provided only that they: NOTE: Under RA 9851, it is the necessity of
a. Carry arms openly; and employing measures which is indispensable to
b. Observe the laws and customs of war. achieve a legitimate aim of the conflict and not
5. The officers and crew members of merchant vessels prohibited by IHL.
who forcibly resist attack.
2. The Principle of Humanity – Prohibits the use of any
Civilian measure that is not absolutely necessary for the
purpose of the war, such as the poisoning of wells,
Any person who does not belong to the armed forces and destruction of works of art and property devoted to
who is not a combatant. religious or humanitarian purposes.

NOTE: In case of doubt whether a person is a civilian or 3. The Principle of Chivalry – Prohibits the belligerents
not, that person shall be considered as a civilian. from the employment of treacherous methods in the
conduct of hostilities, such as the illegal use of Red
Suspension of arms Cross emblems.

A temporary cessation of hostilities by agreement of the 4. The Principle of Proportionality – The legal use of
local commanders for such purposes as the gathering of force whereby belligerents must make sure that
the wounded and the burial of the dead. harm caused to civilians or civilian property is not
excessive in relation to the concrete and direct
Armistice military advantage from an anticipated attack or by

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an attack on military objective. State Policies under RA 9851

War may be terminated by 1. The renunciation of war and adherence to a policy

of peace, equality, justice, freedom, cooperation and
1. Simple cessation of hostilities, without the amity with all nations;
conclusion of a formal treaty 2. Values the dignity of every human person and
2. Treaty of peace guarantees full respect of human rights;
3. Unilateral declaration 3. Promotion of Children as zones of peace
4. The complete submission and subjugation of one of 4. Adoption of the generally accepted principles of
the belligerents, followed by a dictated treaty of international law;
peace or annexation of conquered territory 5. Punishment of the most serious crimes of concern to
the international community; and
Postliminium 6. To ensure persons accused of committing grave
crimes under international law all rights for a fair
It imports the reinstatement of the old laws and and strict trial in accordance with national and
sovereignty of territory which has been under international law as well as accessible and gender-
belligerent occupation once control of the belligerent sensitive avenues of redress for victims of armed
occupant is lost over the territory affected. conflicts.

Application of the Principle of Postliminium (1979 NOTE: The application of the provisions of this Act shall
Bar) not affect the legal status of the parties to a conflict, nor

Where the territory of one belligerent State is occupied give an implied recognition of the status of belligerency.
by the enemy during war, the legitimate government is
ousted from authority. When the belligerent occupation Genocide
ceases to be effective, the authority of the legitimate
government is automatically restored, together with all 1. Any of the following acts with intent to destroy, in
its laws, by virtue of the jus postliminium. whole or in part, a national, ethnic, racial, religious,
social or any other similar stable and permanent
Principle of Uti Possidetis group such as:
a. Killing of members of the group
Allows retention of property or territory in the b. Causing serious bodily or mental harm to
belligerent’s actual possession at the time of the members of the group
cessation of hostilities. c. Deliberately inflicting on the group conditions
of life calculated to bring about its physical
Jus ad bellum (Law on the use of force) destruction in whole or in part
d. Imposing measure intended to prevent births
It seeks to limit resort to force between States. States within the group
must refrain from the threat or use of force against the e. Forcibly transferring children of the group to
territorial integrity or political independence of another another group
state (UN Charter, Art. 2, par. 4). 2. Directly and publicly inciting others to commit
genocide (RA 9851)
XPNs:
1. Self-defense; or NOTE: Genocide may be committed eitherduring war or
2. Following a decision adopted by the UN Security armed conflict or in times of peace.
Council under Chapter VII of the UN Charter.
War crimes
Status Quo Ante Bellum
1. In case of an international armed conflict, grave
Each of the belligerents is entitled to the territory and breaches of the Geneva Conventions of August 12,
property which it had possession of at the 1949, namely any of the following acts against
commencement of the war. persons or property protected:
a. Willful killing;
REPUBLIC ACT 9851 (PHILIPPINE ACT ON CRIMES b. Torture or inhuman treatment, including
AGAINST INTERNATIONAL HUMANITARIAN LAW, biological experiments;
GENOCIDE, AND OTHER CRIMES AGAINST c. Willfully causing great suffering, or serious
HUMANITY) injury to body or health;
d. Extensive destruction and appropriation of
Effect/relevance of the passage of RA 9851 property not justified by military necessity and
carried out unlawfully and wantonly;
RA 9851 mandates both the State and non-state armed e. Willfully depriving a prisoner of war or other
groups to observe international humanitarian law protected person of the rights of fair and
standards and gives the victims of war-crimes, genocide regular trial;
and crimes against humanity legal recourse. f. Arbitrary deportation or forcible transfer of
population or unlawful confinement;

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g. Taking hostages; objectives, or making non-defended localities

h. Compelling a prisoner of war or other or demilitarized zones the object of attack;
protected person to serve in the forces of a h. Killing or wounding a person in the knowledge
hostile power; and that he/she is hors de combat, including a
i. Unjustifiable delay in the repatriation of combatant who, having laid down his/her arms
prisoners of war or other protected persons. no longer having means of defense, has
2. In case of non-international armed conflict, serious surrendered at discretion;
violation of common Art. 3 to the four Geneva i. Making improper use of a flag of truce, of the
Conventions of 12 August 1949, namely any of the flag or the military insignia and uniform of the
following acts committed against persons taking no enemy or of the United Nations, as well as of
active part in the hostilities, including members of the distinctive emblems of the Geneva
the armed forces who have laid down their arms Conventions or other protective signs under
and those placed hors de combat by sickness, the International Humanitarian Law, resulting
wounds, detention or any other cause: in death, serious personal injury or capture;
a. Violence to life and person, in particular, willful j. Intentionally directing attacks against buildings
killings, mutilation, cruel treatment and dedicated to religion, education, art, science, or
torture; charitable purposes, historic monuments,
b. Committing outrages upon personal dignity, in hospitals and places where the sick and
particular humiliating and degrading wounded are collected, provided that they are
treatment; not military objectives.
c. Taking of hostages; and k. Subjecting persons who are in the power of an
d. The passing of sentences and the carrying out adverse party to physical mutilation or to
of executions without previous judgment medical or scientific experiments of any kind,
pronounced by a regularly constituted court, or to removal of tissue or organs for
affording all judicial guarantees which are transplantation, which are neither justified by
generally recognized as indispensable. the medical, dental or hospital treatment of the
3. Other serious violations of the laws and customs person concerned not carried out in his/her
applicable in the armed conflict within the interest, and which cause death to or seriously
established framework of international law, namely: endanger the health of such person or persons;
a. Intentionally directing attacks against the l. Killing wounding or capturing an adversary by
civilian population as such or against individual resort to perfidy
civilians not taking direct part in hostilities;
b. Intentionally directing attacks against civilian NOTE: Perfidy – A combatant’s conduct that
objects, that is, objects which are not military creates the impression that an adversary is
objectives; entitled to, or is obliged to accord protection
c. Intentionally directing attacks against under international law when in fact the
buildings, material, medical units and conduct is use to gain an advantage (Black’s
transport, and personnel using the distinctive Law Dictionary).
emblems of Additional Protocol II in conformity
with international law; m. Declaring that no quarter will be given;
d. Intentionally directing attacks against n. Destroying or seizing the enemy’s property
personnel, installations, material, units or unless such destruction or seizure is
vehicles involved in a humanitarian assistance imperatively demanded by the necessities of
or peacekeeping mission in accordance with war;
the Charter of the United Nations as long as o. Pillaging a town or place, even when taken by
they are entitled to the protection given to assault;
civilians or civilian objects under the p. Ordering the displacement of the civilian
international law of armed conflict; population for reasons related to the conflict,
e. Launching an attack in the knowledge that such unless the security of the civilians involved or
attack will cause incidental loss of life or injury imperative military reasons so demand;
to civilians or damage to civilian objects or q. Transferring, directly or indirectly, by
widespread long-term and severe damage to occupying power of parts of its own civilian
the natural environment which would be population into the territory it occupies, or the
excessive in relation to the concrete and direct deportation or transfer of all or parts of the
military advantage anticipated; population of the occupied territory within or
f. Launching an attack against works or outside this territory;
installations containing dangerous forces in the r. Committing outrages upon personal dignity, in
knowledge that such attack will cause excessive particular, humiliating and degrading
loss of life, injury to civilians or damage to treatment;
civilian objects, and causing death or serious s. Committing rape, sexual slavery, enforced
injury to body or health; prostitution, forced pregnancy, enforced
g. Attacking or bombarding, by whatever means, sterilization, or any other form of sexual
towns, villages, dwellings or buildings which violence;
are undefended and which are not military t. Utilizing the presence of a civilian or other
protected person to render certain points,

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areas or military forces immune from military cultural, religious, gender, sexual orientation other
operations; grounds that are universally recognized as
u. Intentionally using starvation of civilians as a impermissible under international law
method of warfare by depriving them of objects 9. Enforced or involuntary disappearance of persons
indispensable to their survival, including 10. Apartheid
willfully impending relief supplies; 11. Other inhumane acts of similar character
v. In an international armed conflict, compelling intentionally causing great suffering, or serious
the nationals of the hostile party to take part in injury to body or to mental or physical health (RA
the operations of war directed against their 9851).
own country, even if they were in the
belligerent’s service before the commencement
of the war; CATEGORIES OF ARMED CONFLICTS
w. In an international armed conflict, declaring
abolished, suspended or inadmissible in a court
of law the rights and actions of the nationals of Kinds/types of conflict as contemplated in RA 9851
the hostile party;
x. Committing any of the following acts: 1. International Armed Conflict – between two or more
i. Conscripting, enlisting or recruiting States including belligerent occupation.
children under the age of 15 years into the 2. Non-International Armed Conflict – between
national armed forces; governmental authorities and organized armed
ii. Conscripting, enlisting, or recruiting groups or between such groups within a State.
children under the age of 18 years into an
armed force or group other than the NOTE: It does not cover internal disturbances or
national armed forces; and tensions such as riots, isolated and sporadic acts of
iii. Using children under the age of 18 years to violence or other acts of a similar nature (RA 9851).
participate actively in hostilities;
y. Employing means of warfare which are 3. War of National Liberation – an armed struggle
prohibited under international law, such as: waged by a people through its liberation movement
i. Poison or poisoned weapons against the established government to reach self-
ii. Asphyxiating, poisonous or other gases, determination.
and all analogous liquids, materials or
devices; It is also used to denote conflicts in which peoples
iii. Bullets which expand or flatten easily in are fighting against colonial domination and alien
the human body, such as bullets with hard occupation and against racist regimes in the
envelopes which do not entirely cover the exercise of their right of self-determination, as
core or are pierced with incisions enshrined in the U.N. Charter and the Declaration of
iv. Weapons, projectiles and material and Principles of International Law (Protocol I, Art.
methods of warfare which are of the 1(4)).
nature to cause superfluous injury or
unnecessary suffering or which are INTERNATIONAL ARMED CONFLICTS
inherently indiscriminate in violation of
the international law of armed conflict (RA Armed conflict under IHL and RA 9851
9851).
1. “All cases of declared war or any other armed
“Other crimes against humanity” aside from war conflict which may arise between two or more of
crimes and genocide under RA 9851 the Highest contracting parties, even if the State of
war is not recognized by one of them” (Geneva
Any of the following acts when committed as part of a Convention of 1949, Art. 2). It also applies to armed
widespread or systematic attack directed against any conflict between the government and a rebel or
civilian population, with knowledge of the attack: insurgent movement (Geneva Convention of 1949,
Art. 3).
1. Willful killing 2. Under RA 9851, it is any use of force or armed
2. Extermination violence between States or a protracted armed
3. Enslavement violence between governmental authorities and
4. Arbitrary deportation or forcible transfer of organized groups or between such groups within a
population State provided that it gives rise or may give rise to a
5. Imprisonment or other severe deprivation of situation to which the Geneva Conventions of 12
physical liberty in violation of fundamental rules of August 1949 including their common Art. 3 apply.
international law.
6. Torture Instances not covered by an armed conflict
7. Rape, sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization or any other form It does not include internal disturbances or tensions
of sexual violence of comparable gravity such as:
8. Persecution against any identifiable group or 1. Riots
collectivity on political, racial, national, ethnic, 2. Isolated and sporadic acts of violence

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3. Other acts of a similar nature

IHL is intended for the armed forces, whether regular or
Hors de combat not, taking part in the conflict, and protects every
individual or category of individuals not or no longer
Any person who: actively involved in the hostilities. E.g.: wounded or sick
1. Is in the power of an adverse party fighters; people deprived of their freedom as a result of
2. Has clearly expressed an intention to surrender the conflict; civilian population; medical and religious
3. Has been rendered unconscious or otherwise personnel.
incapacitated by wounds or sickness and therefore
is incapable of defending himself (RA 9851) Applicable rules in non-international armed conflict

NOTE: In these cases the person abstains from any 1. Persons taking no active part in the hostilities,
hostile act and does not attempt to escape. Under these including armed forces who have laid down their
circumstances, the said person shall not be made object arms and those placed hors de combat be treated
of attack. Only combatants can be persons hors de humanely, without any adverse distinction founded
combat. on race, color, religion or faith, sex, birth or wealth,
or any other similar criteria. To these end, the
Protected persons in an armed conflict following acts are and shall remain prohibited at
any time and any place whatsoever with respect to
1. A person wounded, sick or shipwrecked, whether the abovementioned persons:
civilian or military; a. Violence to life and person, in particular
2. A prisoner of war or any person deprived of liberty murder of all kinds, mutilation, cruel treatment
for reasons related to an armed conflict and torture;
3. A civilian or any person not taking a direct part or b. Taking of hostages;
having ceased to take part in the hostilities in the c. Outrages against personal dignity, in particular
power of the adverse party; humiliating and degrading treatment;
4. A person who, before the beginning of hostilities, d. The passing of sentences and the carrying out
was considered a stateless person or refugee under of executions without previous judgment
the relevant international instrument accepted by pronounced by a regularly constituted court,
the parties to the conflict concerned or under the affording all the judicial guarantees which are
national legislation of the state of refuge or state of recognized as indispensable by civilized
residence; peoples.
5. A member of the medical personnel assigned 2. The wounded and sick shall be collected and cared
exclusively to medical purposes or to the for.
administration of medical units or to the operation
of an administration of medical transports; or NOTE: An impartial humanitarian body, such as the
6. A member of the religious personnel who is International Committee of the Red Cross, may offer its
exclusively engaged in the work of their ministry services to the parties to the conflict.
and attached to the armed forces of a party to the
conflict, its medical units or medical transports or WAR OF NATIONAL LIBERATION
non-denominational, non-combatant military
personnel carrying out functions similar to religious Wars of national liberation
personnel.
Armed conflicts in which people are fighting against
NOTE: In such situations, the Geneva Conventions and colonial domination and alien occupation and against
Additional Protocol I, which calls for the protection of racist regimes in the exercise of their right to self-
wounded and sick soldiers, medical personnel, facilities determination (Protocol I, Art. 1(4)). These are
and equipment, wounded and sick civilian support sometimes called insurgencies, rebellions or wars of
personnel accompanying the armed forces, military independence.
chaplains and civilians who spontaneously take up arms
to repel an invasion, apply. Basis

INTERNAL OR Protocol Additional to the Geneva Conventions of 12

NON-INTERNATIONAL ARMED CONFLICT August 1949 and relating to the Protection of Victims of
International Armed Conflicts (Protocol I [8 June 1977]).
Inapplicability of IHL in internal disturbance
Categories of wars of national liberation
Internal disturbances and other situations of internal
violence are governed by the provisions of human rights 1. Colonial domination;
law and such measures of domestic legislation as may be 2. Alien occupation; and
invoked. IHL does not apply to situations of violence not 3. Racist regimes when the peoples oppressed by
amounting in intensity to an armed conflict. these regimes are fighting for self-determination.

Applicability of IHL in non-international armed NOTE: The above listed enumeration is EXCLUSIVE.
conflicts

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Effect of the Protocol Principle of Humanity or Martens clause

Armed conflicts that fall under the categories will now be In cases not covered by other international agreements,
regarded as international armed conflicts and thus fall civilians and combatants remain under the protection
under the International Humanitarian Law. and authority of the principles of International Law
derived from established custom, from the Principles of
CORE INTERNATIONAL OBLIGATIONS OF STATES IN Humanity and from the dictates of public conscience.
IHL
The extensive codification of IHL and the extent of the
1. The protection of persons who are not, or are no accession to the resultant treaties, as well as the fact that
longer, participating in hostilities; the denunciation clauses that existed in the codification
instruments have never been used, have provided the
Soldiers who surrender or who are hors de combat international community with a corpus of treaty rules
are entitled to respect for their lives and their moral the great majority of which had already become
and physical integrity. It is forbidden to kill or injure customary and which reflected the most universally
them. recognized humanitarian principles. These rules indicate
the normal conduct and behavior expected of States.
The wounded and sick must be collected and cared
for by the party to the conflict which has them in its PRISONERS OF WAR
power. Protection also covers medical personnel,
establishments, transports and equipment. The Prisoners of War
emblem of the red cross, red crescent or red crystal
is the sign of such protection and must be respected. Those lawful combatants who have fallen into the power
of the enemy.
Captured combatants are entitled to respect for
their lives, dignity, personal rights and convictions. Rights and Privileges of Prisoners of War
They must be protected against all acts of violence
and reprisals. They must have the right to 1. To be treated humanely
correspond with their families and to receive relief. 2. Not to be subject to torture
3. To be allowed to communicate with their families
Civilians under the authority of a party to the 4. To receive food, clothing, religious articles, and
conflict or an occupying power of which they are not medicine
nationals are entitled to respect for their lives, 5. To bare minimum of information
dignity, personal rights and convictions. 6. To keep personal belongings
7. To proper burial
Everyone must be entitled to benefit from 8. To be grouped according to nationality
fundamental judicial guarantees. No one must be 9. To the establishment of an informed bureau
sentenced without previous judgment pronounced 10. To repatriation for sick and wounded (1949 Geneva
by a regularly constituted court. No one must be Convention)
held responsible for an act he has not committed. No
one must be subjected to physical or mental torture, Members of Militias or Volunteer Groups as
corporal punishment or cruel or degrading Prisoners-Of-War
treatment.
Members of militias or volunteer groups are entitled to
2. The right of parties to an armed conflict to choose prisoner-of-war status when captured by the enemy,
methods and means of warfare is not unlimited. provided that:
1. They form part of such armed forces of the state; or
Parties to a conflict and members of their armed 2. They fulfill the following conditions:
forces do not have an unlimited choice of methods a. They are being commanded by a person
and means of warfare. It is prohibited to employ responsible as superior;
weapons or methods of warfare of a nature to cause b. They have a fixed distinctive sign recognizable
unnecessary losses or excessive suffering. at a distance;
c. They carry arms openly; and
Parties to a conflict must at all times distinguish d. They conduct their operations in accordance
between the civilian population and combatants in with the laws and customs of war.
order to spare civilian population and property.
Adequate precautions shall be taken in this regard Captured Guerilla as Prisoner of War
before launching an attack.
A captured guerilla or other members of organized
resistance movements may demand treatment afforded
PRINCIPLES OF IHL to a prisoner of war under the 1949 Geneva Convention,
provided that:
1. They are being commanded by a person responsible
TREATMENT OF CIVILIANS as superior;

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2. They have a fixed distinctive sign recognizable at a NOTE: Examples of these states are Switzerland,
distance; Sweden, The Vatican City, and Costa Rica.
3. They carry arms openly; and
4. They conduct their operations in accordance with Non-alignment (Neutralism)
the laws and customs of war.
This refers to peacetime foreign policies of nations
NOTE: Persons such as civilian members of military desiring to remain detached from conflicting interests of
aircraft crews, and war correspondents, shall be so other nations or power groups.
entitled to prisoner-of-war status when they fall under
the hands of the enemy. Neutralist policy

Status of Journalists Who are Engaged In Dangerous It is the policy of the state to remain neutral in future
Professional Missions In Areas Of Armed Conflicts wars.

They shall be treated as civilians, provided that they take

no action adversely affecting their status as civilians, and Neutrality vs. Non-alignment
their prisoners-of-war status to the armed forces when
they fall to the enemy hands. BASIS NEUTRALITY NON-
ALIGNMENT
Treatment of Spies When Captured Presupposes Exists during
As to
the existence of peace time
As spy is a soldier employing false pretenses or acts applicability
war or conflict
through clandestine means to gather information from Avoids Rejects
the enemy. involvement in imperialism and
Purpose
a war colonialism by the
When captured, may be proceeded against under the world powers
municipal law of the other belligerent, although under Pre- Evaluates the
the Hague Convention, may not be executed without determined world political
trial. But if captured after he has succeeded in rejoining As to nature position events based on
his army, must be treated as a prisoner of war (Nachura case-to-case
Political Law Outline 2014). merits

A soldier not wearing uniform during hostilities runs the A State Considered as a Neutralized State
risk of being treated as a spy and not entitled to prisoner
of war status. When caught, they are not to be regarded When its independence and integrity are guaranteed by
as prisoners of war. an international convention on the condition that such
State obligates itself to never take up arms against any
NOTE: Military Scouts are not spies. other State, except for self-defense, or enter into such
international obligations as would indirectly involve a
Spies are not entitled to prisoner-of-war status when war.
captured by the enemy. Any member of the armed forces
of a party to the conflict who falls into the power of an Rights and Duties of a Neutral State
adverse party while engaging in espionage shall not have
the right to the status of prisoner of war and may be 1. Duty of abstention – Abstain from taking part in the
treated as a spy. hostilities and from giving assistance to either
belligerent
However, the following acts of gathering or attempting to 2. Duty of prevention – Prevent its territory and other
gather information shall not be considered as acts of resources from being used in the conduct of
espionage: hostilities
1. When made by a member of the armed forces who is 3. Duty of acquiescence – Acquiesce in certain
in uniform; restrictions and limitations the belligerents may
2. When made by a member of the armed forces who is find necessary to impose
a resident of the territory occupied by an adverse 4. Right of diplomatic communication – To continue
party who does so but not through an act of false diplomatic relations with other neutral states and
pretenses or in a deliberately clandestine manner. with the belligerents

LAW OF NEUTRALITY Obligations of Belligerents

Neutrality 1. Respect the status of the neutral State;

2. Avoid any act that will directly or indirectly involve
It is non-participation, directly or indirectly, in a war it in their conflict and to submit to any lawful
between contending belligerents. This exists only during measure it may take to maintain or protect its
war time and is governed by the law of nations. neutrality.

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Some Restraints on Neutral States Doctrine of Free Ships Make Free Goods

1. Blockade A ship’s nationality determines the status of its cargo.

2. Contraband of war Thus, enemy goods on a neutral ship, excepting
3. Free ships make free goods contraband, would not be subject to capture on the high
seas.
Blockade
Visit and Search
It is a hostile operation by means of which vessels and
aircraft of one belligerent prevent all other vessels, Belligerent warships and aircraft have the right to visit
including those of neutral States, from entering or and search neutral merchant vessels on the high seas to
leaving the ports or coasts of the other belligerent, the determine whether they are in any way connected with
purpose being to shut off the place from international the hostilities.
commerce and communications with other States.
Unneutral service
Elements of a valid blockade
It consists of acts, of a more hostile character than
1. Binding and duly communicated to neutral states; carriage of contraband or breach of blockade, which are
2. Effective and maintained by adequate sources; undertaken by merchant vessels of a neutral State in aid
3. Established by a competent authority of belligerent of any of the belligerents.
government;
4. Limited only to the territory of the enemy; and Right of Angary
5. Impartially applied to all states.
The right of a belligerent state to seize, use or destroy, in
Contraband case of urgent necessity for purposes of offenses or
defense, neutral property found in enemy territory, or on
It refers to goods which, although neutral property, may the high seas, upon payment of just compensation.
be seized by a belligerent because they are useful for war
and are bound for a hostile destination. Requisites for the Exercise of Right of Angary

Kinds of Contraband 1. That the property is in the territory under the

control or jurisdiction of the belligerent;
1. Absolute – those which are useful for war under all 2. That there is urgent necessity for the taking; and
circumstances (example: guns and ammunitions); 3. That just compensation is paid to the owner.
2. Conditional – those which have both civilian and
military utility (example: food and clothing); or Termination of Neutrality
3. Under the free list – those which are exempt from
the law on contraband for humanitarian reasons Neutrality is terminated when the neutral State itself
(example: medicines) joins the war or upon the conclusion of peace.

Doctrine of Continuous Voyage or Continuous

Transport LAW OF THE SEA

Goods immediately reloaded at an intermediate port on

the same vessel, or reloaded on another vessel or other International Law of the Sea (ILS)
forms of transportation may also be seized on the basis
of doctrine of ultimate consumption. A body of treaty rules amid customary norms governing
the uses of the sea, the exploitation of its resources, and
Doctrine of Ultimate Consumption the exercise of jurisdiction over maritime regimes. It is a
branch of public international law, regulating the
Goods intended for civilian use which may ultimately relations of states with respect to the uses of the oceans
find their way to and be consumed by belligerent forces (Arigo v. Swift, G.R. No. 206510, Sept. 16, 2014).
may be seized on the way.
United Nations Convention on the Law of the Sea
Doctrine of Infection (UNCLOS)

Innocent goods shipped with contraband may also be A treaty that defines the rights and obligations of nations
seized. in their use of the world’s oceans, establishing rules for
business, the environment and the management of
Doctrine of Ultimate Destination marine natural resources.

The liability of the contraband from being captured is The UNCLOS is a multilateral treaty which was opened
determined not by their ostensible but by their real for signature on December 10, 1982 at Montego Bay,
destination. Jamaica. It was ratified by the Philippines in 1984 but
came into force on November 16, 1994 upon the

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submission of the 60th ratification. The UNCLOS gives to 2. Bays – Where the distance between the low-water
the coastal State sovereign rights in varying degrees over marks of the natural entrance points:
the different zones of the sea which are: 1) internal a. Does not exceed 24 nautical miles – a closing line
waters, 2) territorial sea, 3) contiguous zone, 4) may be drawn between these two low-water
exclusive economic zone, and 5) the high seas. It also marks, and the waters enclosed thereby shall
gives coastal States more or less jurisdiction over foreign be considered as internal waters (UNCLOS, Art.
vessels depending on where the vessel is located. Insofar 10 [4])
as the internal waters and territorial sea is concerned, b. Exceeds 24 nautical miles – a straight baseline
the Coastal State exercises sovereignty, subject to the of 24 nautical miles shall be drawn within the
UNCLOS and other rules of international law. Such bay in such a manner as to enclose the
sovereignty extends to the air space over the territorial maximum area of water that is possible with a
sea as well as to its bed and subsoil (Arigo v. Swift, line of that length (UNCLOS, Art. 10 [5]).
supra.).
NOTE: This relates only to bays the coasts of which
Mare Liberum Principle or Free Sea or Freedom of belong to a single State and does not apply to “historic”
the Sea bays (UNCLOS, Art. 10 (1)).
Bay
It means international waters are free to all nations and
belongs to none of them. It is a well-marked indentation whose penetration is in
such proportion to the width of its mouth as to contain
BASELINES land-locked waters and constitute more than a mere
curvature of the coast (UNCLOS, Art. 10 (2)).
Baseline
NOTE: The indentation shall not be regarded as a bay
It is a line from which the breadth of the territorial sea, unless its area is as large as, or larger than, that of the
the contiguous zone and the exclusive economic zone is semi-circle whose diameter is a line drawn across the
measured in order to determine the maritime boundary mouth of that indentation (Ibid).
of the coastal State.

ARCHIPELAGIC STATES

Archipelago

It means a group of islands, including parts of islands,

interconnecting waters and other natural features which
are so closely interrelated that such islands, waters and
other natural features form an intrinsic geographical,
economic and political entity, or which historically have
been regarded as such (UNCLOS, Art. 46).

Archipelagic State

A state constituted wholly by one or more archipelagos

and may include other islands (UNCLOS, Art. 46).

Archipelagic Doctrine (2016 Bar)

Art. I, Sec. 1 of the 1987 Constitution adopts the

archipelagic doctrine. It provides that the national
territory of the Philippines includes the Philippine
archipelago, with all the islands and waters embraced
therein; and the waters around, between and connecting
the islands of the archipelago, regardless of their breadth
Normal Baseline and dimensions form part of the internal waters of the
Philippines.
It is the low-water line along the coast as marked on
large-scale charts officially recognized by the coastal It emphasizes the unity of land and waters by defining an
state (UNCLOS, Art. 5). archipelago either as a group of islands surrounded by
waters or a body of water studded with islands.
Formation of Baseline
STRAIGHT ARCHIPELAGIC BASELINES
1. Mouths of Rivers – If a river flows directly into the
sea, the baseline shall be a straight line across the Straight Archipelagic Baselines vis-à-vis Archipelagic
mouth of the river between points on the low-water State (2016 Bar)
line of its banks (UNCLOS, Art. 9).

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An archipelagic State may draw straight archipelagic and their air space, bed and subsoil and the resources
baselines by joining the outermost points of the contained therein (UNCLOS, Art. 49[4]).
outermost islands and drying reefs of the archipelago
provided that within such baselines are included the ARCHIPELAGIC WATERS
main islands and an area in which the ration of the water
to the area of the land, including atolls, is between 1 to 1 Archipelagic waters
and 9 to 1 (UNCLOS, Art. 47).
These are waters enclosed by the archipelagic baselines,
Guidelines in Drawing Archipelagic Baselines regardless of their depth or distance from the coast
(UNCLOS, Art. 49[1]).
1. The length of such baselines shall not exceed 100
nautical miles, except that up to 3 per cent of the Rights by which archipelagic waters are subject to:
total number of baselines enclosing any archipelago
may exceed that length, up to a maximum length of 1. Rights under existing agreement on the part of the
125 nautical miles (UNCLOS, Art. 47 [2]). third states should be respected (UNCLOS, Art.
2. The drawing of such baselines shall not depart to 51[1]);
any appreciable extent from the general 2. The traditional fishing rights and other legitimate
configuration of the archipelago (UNCLOS, Art. activities of the immediately adjacent neighboring
47[3]). States (Ibid);
3. Such baselines shall not be drawn to and from low 3. Existing submarine cables laid by other States and
tide elevations (UNCLOS, Art. 47[4]). “passing through its waters without making a
windfall” as well as the maintenance and
NOTE: Unless lighthouses or similar installations replacement of such cables upon being notified of
which are permanently above sea level have been their location and the intention to repair or replace
built on them or where a low-tide elevation is them (UNCLOS, Art. 51[2]).
situated wholly or partly at distances not exceeding
the breadth of the territorial sea from the nearest Applicability of the Right of Innocent Passage in
island (Ibid). Archipelagic Waters

4. It shall not be applied in such a manner as to cut off GR: As a rule, ships of all States enjoy the right of
from the high seas or the exclusive economic zone innocent passage through archipelagic waters (UNCLOS,
the territorial sea of another State (UNCLOS, Art. Art. 52[1]).
47[5]).
5. If a part of the archipelagic water of an archipelagic XPN: Right of Innocent Passage may be suspended in
State lies between two parts of an immediately some areas of its archipelagic waters. But such
adjacent neighboring State, existing rights and all suspension must be:
other legitimate interests which the latter State has 1. Without discrimination in form or in fact among
traditionally exercised in such waters and all rights foreign ships;
stipulated by agreement between those States shall 2. Essential for the protection of its security; and
continue and be respected (UNCLOS, Art. 47[6]). 3. Shall take effect only after having been duly
published (UNCLOS, Art. 52[2]).
NOTE: The breadth of the territorial sea, the contiguous
zone, the exclusive economic zone and the continental ---
shelf are measured from the archipelagic baselines Q: Does RA 9522 (Philippine Archipelagic Baseline
drawn in accordance with article 47 (UNCLOS, Art. 48). Law) converting internal waters into archipelagic
waters, violate the Constitution in subjecting these
Sovereignty of the Archipelagic States waters to the right of innocent and sea lanes passage
including overflight? (2004, 2015 Bar)
It extends to the waters enclosed by the archipelagic
baselines (archipelagic waters), regardless of their depth A: Whether referred to as Philippine “internal waters”
or distance from the coast, to the air space over the under Art. I of the Constitution or as “archipelagic
archipelagic waters, as well as to their bed and subsoil waters” under UNCLOS III (Art. 49 [1]), the Philippines
and the resources contained therein. exercises sovereignty over the body of water lying
landward of the baselines, including the air space over it
The sovereignty extends to the archipelagic waters but is and the submarine areas underneath.
subject to the right of innocent passage which is the
same nature as the right of innocent passage in the The fact of sovereignty, however, does not preclude the
territorial sea (UNCLOS, Art. 49[1] in relation to Art. operation of municipal and international law norms
52[1]). subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of
NOTE: The regime of archipelagic sea lanes passage shall maintaining unimpeded, expeditious international
not in other respects affect the status of the archipelagic navigation, consistent with the international law
waters, including the sea lanes, or the exercise by the principle of freedom of navigation.
archipelagic State of its sovereignty over such waters

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Thus, domestically, the political branches of the NOTE: The right of archipelagic sea lanes passage may
Philippine government, in the competent discharge of be exercised through the routes normally used for
their constitutional powers, may pass legislation international navigation (UNCLOS, Art. 53[12]).
designating routes within the archipelagic waters to
regulate innocent and sea lanes passage (Magallona v. Sea Lanes and Air Routes
Ermita, G.R. No. 187167, Aug. 16, 2011).
--- It shall traverse the archipelagic waters and the adjacent
territorial sea and shall include all normal passage
NOTE: In the absence of municipal legislation, routes used as routes for international navigation or
international law norms, now codified in UNCLOS III, overflight through or over archipelagic waters and,
operate to grant innocent passage rights over the within such routes, so far as ships are concerned, all
territorial sea or archipelagic waters, subject to the navigational channels, provided that duplication of
treaty’s limitations and conditions for their exercise. routes of similar convenience between the same entry
Significantly, the right of innocent passage is a customary and exit points shall not be necessary (UNCLOS, Art.
international law, thus automatically incorporated in the 53[4]).
corpus of Philippine law. No modern State can validly
invoke its sovereignty to absolutely forbid innocent Designation or Substitution of Sea Lanes
passage that is exercised in accordance with customary
international law without risking retaliatory measures The archipelagic State shall refer proposals to the
from the international community. competent international organization (International
Maritime Organization). The IMO may adopt only such
The imposition of these passage rights through sea lanes as may be agreed with the archipelagic State,
archipelagic waters under UNCLOS III was a concession after which the archipelagic State may designate,
by archipelagic States, in exchange for their right to prescribe or substitute them (UNCLOS, Art. 53[9]).
claim all the waters landward of their baselines,
regardless of their depth or distance from the coast, as REGIME OF ISLANDS
archipelagic waters subject to their territorial
sovereignty. More importantly, the recognition of Regime of Islands
archipelagic States’ archipelago and the waters enclosed
by their baselines as one cohesive entity prevents the 1. An island is a naturally formed area of land,
treatment of their islands as separate islands under surrounded by water, which is above water at
UNCLOS III. Separate islands generate their own high tide.
maritime zones, placing the waters between islands 2. Except as provided for in paragraph 3, the
separated by more than 24 nautical miles beyond the territorial sea, the contiguous zone and the
States’ territorial sovereignty, subjecting these waters to continental shelf of an island are determined in
the rights of other States under UNCLOS III (Magallona v. accordance with the provisions of the
Ermita, ibid.). Convention applicable to other land territory.
3. Rocks which cannot sustain human habitation
ARCHIPELAGIC SEA LANES PASSAGE or economic life of their own shall have no
exclusive economic zone or continental shelf.
Right of Archipelagic Sea Lanes Passage (UNCLOS, Article 121)

It is the right of foreign ships and aircraft to have NOTE: Islands can be very important because of the
continuous, expeditious and unobstructed passage in sea possibility of exploiting oil and gas resources around
lanes and air routes through or over the archipelagic them. This explains the controversy over Spratleys. It is
waters and the adjacent territorial sea of the archipelagic noteworthy that islands can have their own territorial
state, “in transit between one part of the high seas or an sea, exclusive economic zone and continental shelf.
exclusive economic zone.” All ships and aircraft are However, rocks “which cannot sustain human habitation
entitled to the right of archipelagic sea lanes passage or economic life” only have a territorial sea. But there is
(UNCLOS, Art. 53[1] in relation with Art. 53[3]). no clear international law definition of “economic life”
referred to in n. 3. (Bernas, Introduction to Public
All ships are entitled to the right of archipelagic sea lanes International Law 2009, p. 129)
passage. Submarines are not required to surface in the
course of its passage unlike the exercise of right of Artificial islands or installations are not “islands” in the
innocent passage in the territorial sea (UNCLOS, Art. 20 sense of Article 121 of the UNCLOS. However, coastal
in relation to Art. 53[3]). states may establish safety zones around artificial islands
and prescribe safety measures around them. [ibid, citing
The right is the same as Transit Passage. Both define the UNCLOS, Article 60(4) and (5)]
rights of navigation and overflight in the normal mode
solely for the purpose of “continuous, expeditious and Regime of Islands under Philippine Laws
unobstructed transit.” In both cases, the archipelagic
state cannot suspend passage (UNCLOS, Arts. 44 and 54). The baseline in the following areas over which the
Philippines likewise exercises sovereignty and
jurisdiction shall be determined as "Regime of Islands"
under the Republic of the Philippines consistent with

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Article 121 of the United Nations Convention on the Law It is the line every point of which is at a distance from the
of the Sea (UNCLOS): nearest point of the baseline equal to the breadth of the
territorial sea (UNCLOS, Art. 4).
a) The Kalayaan Island Group as constituted
under Presidential Decree No. 1596; and Territorial sea vs. Internal waters of the Philippines
b) Bajo de Masinloc, also known as Scarborough
Shoal. TERRITORIAL SEA INTERNAL WATERS
(Republic Act No. 9522, Sect. 2)
defined by historic right or
INTERNAL WATERS treaty limits defined by the
archipelago doctrine
Internal waters
as defined in the outermost points of
These are waters of lakes, rivers and bays landward of Convention on the our archipelago
the baseline of the territorial sea. Waters on the Law of the Sea, has a which are connected
landward side of the baseline of the territorial sea also uniform breadth of with baselines and
form part of the internal waters of the coastal state. 12 miles measured all waters comprised
However, in the case of archipelagic states, waters from the lower water therein
landward of the baseline other than those of rivers, bays, mark of the coast
and lakes, are archipelagic waters (UNCLOS, Art. 8 [1]).

Delimitation of internal waters Methods used in defining territorial sea

Within the archipelagic waters, the archipelagic state 1. Normal baseline method – The territorial sea is
may draw closing lines for the delimitation of internal simply drawn from the low-water mark of the coast,
waters (UNCLOS, Art. 50 in relation with Arts. 9, 10, 11). to the breadth claimed, following its sinuousness
and curvatures but excluding the internal waters in
NOTE: A coastal state has sovereignty over its internal the bays and gulfs (UNCLOS, Art. 5).
waters as if internal waters were part of its land territory 2. Straight baseline method – Where the coastline is
(UNCLOS, Art. 50). deeply indented and cut into, or if there is a fringe of
islands along the coast in its immediate vicinity, the
Right of Innocent Passage (1991 Bar) method of straight baselines joining appropriate
points may be employed in drawing the baseline
It means navigation through the territorial sea of a State from which the breadth of the territorial sea is
for the purpose of traversing the sea without entering measure (UNCLOS, Art. 7).
internal waters, or of proceeding to internal waters, or
making for the high seas from internal waters, as long as NOTE: The Philippines uses this method in drawing
it is not prejudicial to the peace, good order or security baselines.
of the coastal State (UNCLOS, Arts. 18 [1][2], 19[1]).
Sovereignty over the territorial sea (2015 Bar)
Applicability of the Right of Innocent Passage in
Internal Waters Coastal states exercise sovereignty over Territorial sea
and it extends to the airspace over the territorial sea and
GR: There is no Right of Innocent Passage through the to its seabed and subsoil.
internal water because it only applies to territorial sea
and the archipelagic waters. Note: The sovereignty over the territorial sea is subject
to the right of innocent passage on the part of ships of all
XPN: A coastal state may extend its internal waters by states (Magallona, 2005).
applying the straight baseline method in such a way as to
enclose as its internal waters areas which are previously Applicability of the right of innocent passage in the
part of the territorial sea. It also applies to straits used internal waters and territorial sea
for international navigation converted into internal
waters by applying the straight baselines method. Thus, In the territorial sea, a foreign State can claim for its
the right of innocent passage continues to exist in the ships the right of innocent passage, whereas in the
“extended” internal waters (UNCLOS, Art. 8[2]). internal waters of a State no such right exists.
TERRITORIAL SEA However, in Saudi Arabia v. Aramco (Arbitration 1963),
the arbitrator said that according to international law —
Breadth of The Territorial Sea (2004, 2015 Bar) ports of every state must be open to foreign vessels and
Every State has the right to establish the breadth of the can only be closed when vital interests of the state so
territorial sea up to a limit not exceeding 12 nautical requires. But according to the Nicaragua v. US case, a
miles, measured from baselines (UNCLOS, Art. 3). coastal state may regulate access to its ports.
Outer Limit of The Territorial Sea Instances when the right of innocent passage is
considered prejudicial

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1. Submarines and other underwater vehicles – They

Right of innocent passage is considered prejudicial if the are required to navigate on the surface and to show
foreign ship engages in the following activities: their flag (UNCLOS, Art. 20).
1. Any threat or use of force against the sovereignty, 2. Foreign nuclear-powered ships and ships carrying
territorial integrity or political independence of the nuclear or other inherently dangerous or noxious
coastal State, or in any other manner in violation of substances – They must carry documents and
the principles of international law embodied in the observe special precautionary measures established
Charter of the United Nations; for such ships by international agreements. They
2. Any exercise or practice with weapons of any kind; may be required to confine their passage on sea
3. Any act aimed at collecting information to the lanes prescribed by the coastal State (UNCLOS, Art.
prejudice of the defense or security of the coastal 23).
State; 3. Warships –
4. Any act aimed at collecting information to the a. Coastal State may require that it leave the
prejudice of the defense or security of the coastal territorial sea immediately when it does not
State; comply with the laws and regulations of the
5. Any act of propaganda aimed at affecting the coastal State and disregards compliance
defense or security of the coastal State; (UNCLOS, Art. 30)
6. The launching, landing or taking on board of any b. Flag State shall bear international
aircraft; responsibility for any loss or damage to the
7. The launching, landing or taking on board of any coastal State resulting from non-compliance
military device; with the laws and regulations of the coastal
8. The loading or unloading of any commodity, State concerning passage (UNCLOS, Art. 31).
currency or person contrary to the customs, fiscal, c. Submarines in innocent passage are required to
immigration or sanitary laws and regulations of the navigate on the surface and to show their flag
coastal State; (UNCLOS, Art. 20).
9. Any act of willful and serious pollution contrary the
Convention; NOTE: This will not affect the immunities of
10. Any fishing activities; warships and other government ships operated for
11. The carrying out of research or survey activities; non-commercial purpose (UNCLOS, Art. 32).
12. Any act aimed at interfering with any systems of
communication or any other facilities or Warship
installations of the coastal State;
13. Any other activity not having a direct bearing on It is a ship belonging to the armed forces of a State
passage (UNCLOS, Art. 19 [2]). bearing the external marks distinguishing such ships of
its nationality, under the command of an officer duly
Laws and regulations of the coastal State relating to commissioned by the government of the State and whose
innocent passage name appears in the appropriate service list or its
equivalent, and manned by a crew which is under
The coastal state may adopt laws and regulations in regular armed forces discipline (UNCLOS, Art. 29).
respect of all or any of the following:
1. Safety of navigation and the regulation of maritime NOTE: The right of innocent passage pertains to all
traffic; ships, including warships.
2. Protection of navigational aids and facilities and
other facilities or installations; Duties of the coastal State with regard to innocent
3. Protection of cables and pipelines; passage of foreign ships
4. Conservation of the living resources of the sea;
5. Prevention of infringement of the fisheries laws and The coastal State shall:
regulations of the coastal State; 1. Not hamper the innocent passage of the foreign
6. Preservation of the environment of the coastal State ships through its territorial sea;
and the prevention, reduction and control of 2. Not impose requirements on foreign ships which
pollution thereof; have the practical effect of denying or impairing the
7. Marine Scientific research and hydrographic right of innocent passage;
surveys; 3. Not discriminate in form or in fact against the ships
8. Prevention of infringement of the customs, fiscal, of any State or against ships carrying cargoes to,
immigration or sanitary laws and regulations of the from or on behalf of any State; and
coastal State (UNCLOS, Art. 21[1]). 4. Give appropriate publicity to any danger to
navigation, of which it has knowledge, within its
NOTE: It shall not however, apply to the design, territorial sea (UNCLOS, Art. 24).
construction, manning or equipment of foreign ships
unless they are giving effect to generally accepted Rights of the coastal state relating to innocent
international rules or standards (UNCLOS, Art. 21[2]). passage through the territorial sea:

Rules when traversing the territorial sea through the The coastal State may:
right of innocent passage

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1. Take the necessary steps in its territorial sea to The coastal state may exercise civil jurisdiction, subject
prevent passage which is not innocent (UNCLOS, Art. to the following exceptions:
25[1]); 1. It should not stop or divert a foreign ship passing
2. Take the necessary steps to prevent any breach of through the territorial sea for the purpose of
the conditions to which admission of ships to exercising civil jurisdiction in relation to a person
internal waters or such a call is subject (UNCLOS, on board the ship (UNCLOS, Art. 28[1])
Art. 25[2]); 2. It may not levy execution against or arrest the ship
3. Without discrimination in form or in fact among for the purpose of any civil proceedings, save only in
foreign ships, suspend temporarily in specified respect of obligations or liabilities assumed or
areas of its territorial sea the innocent passage of incurred by the ship itself in the course or for the
foreign ships if such suspension is essential for the purpose of its voyage through the waters of the
protection of its security, including weapon coastal State (UNCLOS, Art. 28[2]).
exercises (UNCLOS, Art. 25[3]).
NOTE: It is without prejudice to the right of the
NOTE: No charge may be levied upon foreign ships by coastal State, in accordance with its laws, to levy
reason only of their passage through the territorial sea execution against or to arrest, for the purpose of any
(UNCLOS, Art. 26[1]). civil proceedings, a foreign ship lying in the
territorial sea, or passing through the territorial sea
Charges may be levied only as payment for specific after leaving internal waters (UNCLOS, Art. 28[3]).
services rendered to the ship which shall be levied
without discrimination (UNCLOS, Art. 26[2]). CONTIGUOUS ZONE
(2004, 2015 Bar)
Right of the coastal state to suspend innocent
passage in specified areas It is the zone adjacent to the territorial sea, which the
coastal State may exercise such control as is necessary
The coastal state may, without discrimination in form or to:
in fact among foreign ships, suspend temporarily in 1. Prevent infringement of its customs, fiscal,
specified areas of its territorial sea the innocent passage immigration, or sanitary laws within its territory or
of foreign ships if such suspension is essential for the its territorial sea or
protection of its security, including weapons exercises. 2. Punish such infringement.
Such suspension shall take effect only after having been
duly published (UNCLOS, Art. 25(3), Part II Territorial Sea The contiguous zone may not extend more than 24
and Contiguous Zone). nautical miles beyond the baseline from which the
breadth of the territorial sea is measured 12nautical
Exercise of criminal jurisdiction of the coastal state miles from the territorial sea (UNCLOS, Art. 33).

GR: Criminal jurisdiction of the coastal state should not NOTE: The coastal state does not have sovereignty over
be exercised on board a foreign ship passing through the the contiguous zone because the contiguous zone is a
territorial sea to arrest any person or to conduct any zone of jurisdiction for a particular purpose, not of
investigation in connection with any crime committed on sovereignty.
board the ship during its passage.
Contiguous zone does not automatically belong to
XPNs: the territory of the coastal state
1. Consequence of the crime extend to the coastal
state; The coastal state must make a claim to its Contiguous
2. Crime is of a kind to disturb the peace of the country Zone for pertinent rights to exist. Article 33 of the
or the good order of the territorial sea UNCLOS speaks in permissive terms, i.e, “the coastal
3. Assistance of local authorities has been requested state may exercise the control necessary” for definite
by the master of the ship or by a diplomatic agent or purposes (Magallona, 2005).
consular officer of the flag State; or
4. Measures are necessary for the suppression of illicit Extent of the Contiguous Zone
traffic in narcotic drugs or psychotropic substances
(UNCLOS, Art. 27[1]). The coastal State may not extend its Contiguous Zone
beyond the 24 nautical miles from the baseline (from
NOTE: Such does not affect the right of the coastal state which the breadth of the territorial sea is measured)
to take any steps authorized by its laws for the purpose (UNCLOS, Art. 33 [2]).
of an arrest or investigation on board a foreign ship
passing through the territorial sea after leaving internal Right of Transit passage
waters (UNCLOS, Art. 27[2]).
It is the right to exercise freedom of navigation and
Exercise of civil jurisdiction over foreign ships overflight solely for the purpose of continuous and
passing through the territorial sea of the coastal expeditious transit through the straits used for
state international navigation, i.e., between two areas of the
high seas or between two exclusive economic zones.

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The requirement of continuous and expeditious transit 1. Sovereign rights

does not preclude passage through the strait for the a. For the purpose of exploring and exploiting,
purpose of entering, leaving or returning from a State conserving and managing the living and non-
bordering the strait, subject to the conditions of entry to living resources in the super adjacent waters of
that State (UNCLOS, Art. 38[2]). the sea-bed and the resources of the sea-bed
and subsoil;
NOTE: The right of transit passage is not applicable if b. With respect to the other activities for the
there exists seaward of the island a route through the economic exploitation and exploration of the
high seas or through an exclusive economic zone of EEZ, such as production of energy from water,
similar convenience with respect to navigational and currents and winds;
hydrographical characteristics (UNCLOS, Art. 38[1]). 2. Jurisdictional rights
a. With respect to establishment and use of
Vessels entitled to right of transit passage artificial islands;
b. As to protection and preservation of the marine
All ships and aircraft enjoy the right of transit passage. environment; and
c. Over marine scientific research
Right of innocent passage vs. Transit passage 3. Other rights and duties provided for in the Law of
the Sea Convention (Law of the Sea Convention, Art.
INNOCENT TRANSIT 56).
BASIS
PASSAGE PASSAGE
Pertains only to Includes right of NOTE: The coastal State has no sovereignty over the
As to scope navigation of overflight EEZ. What the coastal State only has are sovereign rights,
ships jurisdictional rights, and other rights under the Law of
Requires No requirement the Sea Convention.
submarine and specially
other underwater applicable to The coastal state may inspect and arrest ship’s crew
As to in its EEZ
vehicles to submarines
submarines
navigate on the
surface and to The coastal State may board, and inspect a ship, arrest a
show their flag ship and its crew and institute judicial proceedings
As to Can be suspended Cannot be against them. Arrested vessels and their crews may be
suspension suspended required to post reasonable bond or any other form of
In the designation Designation of sea security. However, they must be promptly released upon
of sea lanes and lanes and traffic posting of bond.
traffic separation separation
schemes, the schemes is subject In the absence of agreement to the contrary by the States
coastal State shall to a proposal and concerned, UNCLOS does not allow imprisonment or any
only take into agreement other form of corporal punishment. However, in cases of
As to arrest and detention of foreign vessels, it shall promptly
account the between States
designation notify the flag state of the action taken.
recommendations bordering the
of sea lanes
of a competent straits and its
international subsequent Primary obligations of coastal states over the EEZ
organization. adoption by a
competent 1. Proper conservation and management measures
international that the living resources of the EEZ are not
organization. subjected to over-exploitation;

Thalweg Doctrine NOTE: The UNCLOS does not set a limit, except by
the duty of the coastal state not to overexploit
It provides that for boundary rivers, in the absence of an (Magallona, 2005).
agreement between the riparian States, the boundary
line is laid in the middle of the main navigable channel. 2. Promote the objective of “optimum utilization” of
the living resources, and to this end, to determine
EXCLUSIVE ECONOMIC ZONE the maximum allowable catch of such resources in
(2000, 2004, 2005, 2015 Bar) relation to its capacity to harvest the allowable
catch (UNCLOS, Art. 61[2], 62[1]).
It gives the coastal State sovereign rights overall
economic resources of the sea, sea-bed and subsoil in an Objectives of conservation of living resources in the
area extending not more than 200 nautical miles beyond EEZ
the baseline from which the territorial sea is measured
(UNCLOS, Arts. 55 & 57). 1. The determination of the allowable catch of the living
resources;
Rights of the coastal state in the EEZ (2004, 2005 2. The maintenance of the living resources in such a way
Bar) that they are not endangered by over-exploitation;

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3. The maintenance or restoration of population of infringement its natural resources
harvested species at levels which can produce the
maximum sustainable yield; and (UNCLOS, Art. 61) CONTINENTAL SHELF
4. The maintenance of associated or dependent species (1991, 2015 Bar)
above levels at which their reproduction may become
seriously threatened (UNCLOS, Art. 61) Otherwise known as archipelagic or insular shelf for
archipelagos, refers to a) the seabed and subsoil of
Note: The coastal state must determine its capacity to the submarine areas adjacent to the meters or,
harvest the living resources of the EEZ. If it does not have beyond that limit, to where the depth allows
capacity to harvest the allowable catch, it shall give other exploitation, and b) the seabed and subsoil of areas
states access to the surplus of the allowable catch by adjacent to islands.
means of agreements or arrangements consistent with Categories of Continental shelf
the UNCLOS. For this purpose the coastal state may
establish terms and conditions by laws and regulations 1. Continental shelf
(UNCLOS, Art. 62) a. Geological continental shelf
b. Juridical/Legal Continental Shelf
If the coastal state sets the allowable catch at the same 2. Extended Continental Shelf
level as its harvesting capacity, then no surplus is left.
The result is that the access by other states to surplus
stocks may prove to be illusory (Magallona, 2005).

Matters that the coastal state may regulate in regard

to fishing by the nationals of other states in the EEZ

1. licensing of fishermen, fishing vessels and equipment,

and the payment of fishing;
2. determining the species which may be caught and
fixing the quotas to catch;
3. regulation of seasons and areas of fishing, the types,
sizes and amount of gear and fishing vessels that may be
used;
4. fixing the age and size of fish that may be caught;
5. information required of fishing vessels, including catch
and effort statistics and vessel position reports;
6. the conduct of fisheries research programs
7. the placing of observers and trainees by the coastal
state on board foreign vessels;
8. the landing of the catch by foreign vessels in the ports
of the coastal state;
Geological continental shelf
9. the terms and conditions of joint ventures or
cooperative arrangements;
It comprises the entire prolongation of the coastal state’s
10. training of personnel and transfer of fisheries
land mass and extends up to the outer edge of the
technology; and
continental margin.
11. enforcement procedures
It starts from the baseline from which the territorial sea
NOTE: The nationals of other states granted access to the
is measured and has its outer limit at the outer edge of
EEZ must comply with conservation measures and other
the continental margin which may extend beyond the
conditions provided in these laws and regulations
200 nautical miles from the baseline, or may fall short of
(UNCLOS, Art. 62).
that distance.
Contiguous zone vs. EEZ (2004 Bar)
Continental shelf (Juridical/Legal Continental Shelf)
CONTIGUOUS ZONE EEZ
It comprises the sea-bed and subsoil of the submarine
Known as the protective Ends at the 200th areas that extend beyond its territorial sea throughout
jurisdiction and starts from nautical mile from the the natural prolongation of its land territory to the outer
the 12th nautical mile from baseline edge of the continental margin or to a distance of 200
low water from the baseline nautical miles beyond the baselines from which the
breadth of the territorial sea is measured if the edge of
Coastal state may exercise No state really has the the continental margin does not extend up to that
the control necessary to (1) exclusive ownership of distance (UNCLOS, Art. 76[1]).
prevent infringement of its it, but the state which
customs, fiscal, immigration, has a valid claim on it NOTE: The rights of the coastal state over the
or sanitary laws within its according to the continental shelf do not depend on occupation, effective
territory or its territorial UNCLOS has the right or notional, or on any express proclamation (UNCLOS,
sea or (2) punish such to explore and exploit Art. 77[3]).

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express consent of the coastal State (UNCLOS, Art.

The UNCLOS unifies the continental and the extended 77[2]). Natural resources include mineral and other
continental shelves into one by providing that the non-living resources of the seabed and subsoil
continental shelf extends to the breadth of either shelf, together with living organisms belonging to
whichever is the farthest (UNCLOS, Art. 76[1][4]). sedentary species (UNCLOS, Art. 77[4]).

Continental margin Rule on payment for exploitation of non-living

resources
It is the submerged prolongations of the land mass of the
coastal state, consisting of the continental shelf proper, GR: Exploitation of the non-living resources of the
the continental slope and the continental rise. It does not continental shelf beyond 200 nautical miles would
include the deep ocean floor with its ocean ridges or the entail the coastal State to make payments or
subsoil (UNCLOS, Art. 76[3]). contributions in kind which shall be made annually
with respect to all production at site after the first
NOTE: The coastal State shall establish the outer edge of five years of production and 1% of the value or
the continental margin wherever the margin extends volume of production at the site at the sixth year. It
beyond the 200 nautical miles from the baselines. In shall increase by 1% for each subsequent year until
establishing the Continental Margin it shall either use: the 12th year where it shall remain at 7%.
1. A line drawn by reference to points no more than 60
nautical miles from the foot of the continental slope; The payments or contributions shall be made
or through the International Seabed Authority, which
2. A line drawn by reference to points at which the shall distribute them to States Parties to this
thickness of sediments is less than one percent of Convention, on the basis of equitable sharing
the distance to the base of the continental slope criteria, taking into account the interests and needs
(UNCLOS, Art. 76[4]). of developing States, particularly the least
developed and the land-locked among them
Permissible breadth of the continental shelf (UNCLOS, Art. 82[1][2][4]).

Under the said UN Convention, it extends to a distance XPN: A developing State which is a net importer of a
not extending 200 nautical miles from the baselines. mineral resource produced from its continental
However, if the coastal State succeeds in its application shelf is exempt from making such payments or
for an extended continental shelf, it may extend to not contributions in respect of that mineral resource
more than 350 nautical miles (UNCLOS, Art. 76[1][5]). (UNCLOS, Art. 82[3]).

NOTE: Under Presidential Proclamation 370, the 2. To lay submarine cables and pipelines on the
continental shelf has no such legal limit. It extends continental shelf (UNCLOS, Art. 79[1]);
outside the area of the territorial sea “to where the depth
of the superjacent waters admits of the exploitation of NOTE: State may make reasonable measures for the
such natural resources.” In this case, exploitation of prevention, reduction and control of pollution from
resources may go beyond the 200 nautical miles. pipelines. The laying of cables is limited by the right
of the coastal state to take measures in exploring its
EXTENDED CONTINENTAL SHELF continental shelf, exploiting the natural resources,
and the protection of the marine environment from
It is that portion of the continental shelf that lies beyond pollution (UNCLOS, Art. 79).
the 200 nautical miles limit in the juridical/legal
continental Shelf (Ibid). 3. Artificial islands, installations and structures on the
continental shelf (UNCLOS, Art. 80);
Benham Plateau
NOTE: Exclusive right to construct, to authorize the
It is also known as the Benham Rise. The Philippines construction, operation and use of artificial islands
lodged its claim on the area with the United Nations and installations. Jurisdiction is also exclusive
Commission on the Limits of the Continental Shelf on (UNCLOS, Art. 80).
April 8, 2009. The UNCLOS approved the claim of the
Philippines that the Benham Plateau is part of Philippine 4. Marine scientific research (UNCLOS, Art. 246[1])
Territory on April 12, 2012.
NOTE: May be conducted only with consent. Beyond
Sovereign rights of a coastal State over the the 200 nautical mile, the coastal State cannot
continental shelf withhold consent to allow research on the ground
that the proposed research project has direct
1. Right to explore and exploit its natural resources significance to exploration or exploitation of natural
(UNCLOS, Art. 77[1]); resources (UNCLOS, Art. 246[2][6]).

NOTE: This right is exclusive. Should the coastal 5. Right to authorize and regulate drilling on the
State not explore or exploit the natural resources, continental shelf for all purposes (UNCLOS, Art. 81)
no one may undertake these activities without the

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NOTE: This right is exclusive. being lost, or to rescue persons in distress. It shall
require the master to assist the other ship after a
Limitation on the rights of coastal state over the collision or its crew and passengers (UNCLOS, Art. 98).
continental shelf
Applicable laws to vessels sailing on the high seas
Rights of the coastal State over the continental shelf do
not affect the legal status of the superjacent waters or of GR: Vessels sailing on the high seas are subject only to
the air space above those waters and such exercise of international law and to the laws of the flag State.
right must not infringe or result in unjustifiable
interference with navigation and other rights and XPN: However, the arrest or boarding of a vessel sailing
freedoms of other States (UNCLOS, Art. 78[1][2]). in the high seas may be made by a State, other than the
flag-State of such vessel, in the following instances:
Island 1. A foreign merchant ship by the coastal State in its
internal waters, the territorial sea and the
It is a naturally formed area of land, surrounded by contiguous zones for any violation of its laws.
water, which is above water at high tide. 2. A foreign merchant ship for piracy.
3. Any ship engaged in the slave trade.
NOTE: The continental shelf of an island is recognized. 4. Any ship engaged in unauthorized broadcasting.
However, rocks which cannot sustain human habitation 5. A ship without nationality, or flying a false flag or
or economic life shall have no continental shelf or EEZ. refusing to show its flag.

High or Open seas Flag of Convenience (2004 Bar)

The waters, which do not constitute the internal waters, It is a national flag flown by a ship not because the ship
archipelagic waters, territorial sea and exclusive or its crew has an affiliation with the nation, but because
economic zone of a state. They are beyond the the lax controls and modest fees and taxes imposed by
jurisdiction and sovereign rights of states (UNCLOS, Art. that nation have attracted the owner to register it there.
86).
Jurisdiction over Crimes committed on board a
It is treated as res communes or res nullius, and thus, are foreign private vessel anchored in a coastal state
not part of the territory of a particular State (UNCLOS,
Art. 89). Under both the English and French rules, a crime will be
tried by a local state, if serious enough as to compromise
Freedoms on the high seas the peace of its port; otherwise by the flag state, if it
involves only the members of the crew and is of such a
These are the freedom of: (NOLAFS) petty nature as not to disturb the peace of the local state.
1. Navigation
2. Overflight In the French rule, it recognizes the jurisdiction of the
3. To lay submarine cables and pipelines flag state over crimes committed on board the vessel
4. To construct artificial islands and other installations except if the crime disturbs the peace, order and security
permitted under international law of the host country. In English rule, the host country has
5. Fishing jurisdiction over the crimes committed on board the
6. Scientific research (UNCLOS, Art. 87[1] in relation to vessel unless they involve the internal management of
Art. 90) the vessel.

NOTE: This is open to all States and shall be exercised Instances when a State may exercise jurisdiction on
with due regard for the interests of other States in their open seas
exercise of the freedom of the high seas (UNCLOS, Art.
87[2]). 1. Slave trade
2. Hot pursuit
Flag State 3. Right of approach
4. Piracy
It refers to the State whose nationality the ship
possesses; for it is nationality which gives the right to fly Duty of every state in the transportation of slaves
a country’s flag. In the high seas, a state has exclusive
jurisdiction over ships sailing under its flag. It is required Every state shall take effective measures to prevent and
however, that there exists a genuine link between the punish the transport of slaves in ships authorized to fly
State and the ship (UNCLOS, Arts. 91[1], 92[2]). its flag and to prevent the unlawful use of the flag for
that purpose. Any slave taking refuge on board any ship,
Duty of the flag state whatever its flag, shall ipso facto be free (UNCLOS, Art.
99).
A flag state has the duty to render assistance in distress
in the sense that it shall require the master of the ship, Doctrine of Hot Pursuit
without serious danger to the ship, crew or passengers,
to render assistance to any person at sea in danger of

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It provides that the pursuit of a vessel maybe undertaken Philippines for trial. Do the courts of Manila have
by the coastal State which has “good reason to believe jurisdiction over the case?
that the ship has violated the laws and regulations of that
State”. A: Hijacking is actually piracy, as defined in People v. Lol-
lo (G.R. No. 17958, Feb. 27, 1922), as robbery or forcible
Elements of the Doctrine Of Hot Pursuit depredation in the high seas without lawful authority
and done animo furandi and in the spirit and intention of
1. The pursuit must be commenced when the ship is universal hostility. Piracy is a crime against all mankind.
within the internal waters, territorial sea or the Accordingly, it may be punished in the competent
contiguous zone of the pursuing State, and may only tribunal in any country where the offender may be found
be continued outside if the pursuit has not been or into which he may be carried. The jurisdiction on
interrupted piracy unlike all other crimes has no territorial limits. As
2. It is continuous and unabated it is against all, all so may punish it. Nor does it matter
3. Pursuit conducted by a warship, military aircraft, or that the crime was committed within the jurisdictional 3-
government ships authorized to that effect. mile limit of a foreign State for those limits, though
(UNCLOS, Art. 111) neutral to war, are not neutral to crimes.
---
Arrival Under Stress
Land-locked states
It refers to involuntary entrance of a foreign vessel on
another state’s territory which may be due to lack of These are states which do not border the seas and do not
provisions, unseaworthiness of the vessel, inclement have EEZ.
weather, or other case of force majeure, such as pursuit
of pirates. Geographically disadvantaged states

Piracy under the UNCLOS 1. Coastal states which can claim no EEZ of their own;
and
Piracy consists of any of the following acts: 2. Coastal states, including states bordering closed or
1. Illegal acts of violence or detention, or any act of semi-closed states, whose geographical situations
depredation, committed for private ends by the make them dependent on the exploitation of the
crew or the passengers of a private ship or a private living resources of the EEZ of other coastal states in
aircraft and directed: the region (UNCLOS, Art. 70[2]).
a. On the high seas, against another ship or
aircraft, or against persons or property on Rights of land-locked states and geographically
board such ship or aircraft disadvantaged states
b. Against a ship, aircraft, persons or property in a
place outside the jurisdiction of any State 1. Land-locked States shall have the right to
2. Act of voluntary participation in the operation of a participate, on an equitable basis, the exploitation of
ship or of an aircraft with knowledge of facts an appropriate part of the surplus of the living
making it a pirate ship or aircraft; resources of the exclusive economic zones of coastal
3. Act of inciting or of intentionally facilitating an act States of the same sub region or region, taking into
described above (UNCLOS, Art. 101). account the relevant economic and geographical
circumstances of all States concerned (UNCLOS, Art.
NOTE: If committed by a warship, government ship or 69[1]).
governmental aircraft whose crew mutinied and taken 2. Developed land-locked States shall be entitled to
control of the ship or aircraft, it is assimilated to acts participate in the exploitation of living resources
committed by a private ship or aircraft (UNCLOS, Art. only in the exclusive economic zones of developed
102). coastal States of the same sub region or region
having regard to the extent to which the coastal
A ship or aircraft retains its nationality although it State, in giving access to other States to the living
has become a pirate (UNCLOS, Art. 104). resources of its exclusive economic zone, has taken
into account the need to minimize detrimental
Warships on the high seas enjoy immunity from effects on fishing communities and economic
jurisdiction of other states. They enjoy complete dislocation in States whose nationals have
immunity. The jurisdiction of their flag state is exclusive habitually fished in the zone (UNCLOS, Art. 70[1]).
(UNCLOS, Art. 95).
NOTE: This is without prejudice to arrangements agreed
--- upon in sub region or regions where the coastal State
Q: A Filipino owned construction company with may grant to land-locked States of the same sub region
principal office in Manila leased an aircraft or region equal or preferential rights for the exploitation
registered in England to ferry construction workers of the living resources in the EEZ (UNCLOS, Art. 70[6]).
to the Middle East. While on a flight to Saudi Arabia
with Filipino crew provided by the lessee, the This however shall not apply in case of a coastal State
aircraft was highjacked by drug traffickers. The whose economy is overwhelmingly dependent on the
hijackers were captured in Damascus and sent to the

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exploitation of the living resources of its EEZ (UNCLOS,
Art. 71).

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EXTENT and DEFINITION RIGHTS and POWERS OF STATES

1. Rights under existing agreement on the part of the
third states should be respected.

2. The traditional fishing rights and other legitimate

activities of the immediately adjacent neighboring
Internal Waters States.
These are waters enclosed by the
archipelagic baselines, regardless of 3. Existing submarine cables laid by other States and
their depth or distance from the “passing through its waters without making a
coast. windfall” as well as the maintenance and
replacement of such cables upon being notified of
their location and the intention to repair or replace
them.

Territorial Seas are defined by

historic right or treaty limits.
Territorial Sea Coastal states exercise sovereignty over Territorial sea and
As defined in the Convention on the it extends to the airspace over the territorial sea and to its
Law of the Sea, it has a uniform seabed and subsoil.
breadth of 12 miles measured
from the lower water mark of the
coast.

It is the zone adjacent to the The coastal state does not have sovereignty over the
Contiguous territorial sea. The contiguous zone contiguous zone because the contiguous zone is a zone of
Zone may not extend more than 24 jurisdiction for a particular purpose, not of sovereignty.
nautical miles beyond the
baseline from which the breadth State may exercise control as is necessary to:
of the territorial sea is measured
12 nautical miles from the 1. Prevent infringement of its customs, fiscal,
territorial sea immigration, or sanitary laws within its territory
or its territorial sea or

2. Punish such infringement.

It gives the coastal State sovereign States may exercise;

rights overall economic resources of 1. Sovereign rights
Exclusive the sea, sea-bed and subsoil in an 2. Jurisdictional rights
Economic Zone area extending not more than 200 3. Other rights and duties provided for in the Law of
nautical miles beyond the the Sea Convention
baseline from which the territorial
sea is measured (Please see discussion on rights of the coastal state in the
EEZ, p. 50)

The waters, which do not constitute They are beyond the jurisdiction and sovereign rights of
High Seas the internal waters, archipelagic state.
waters, territorial sea and exclusive
economic zone of a state. It is treated as res communes or res nullius, and thus, are
not part of the territory of a particular State.

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INTERNATIONAL TRIBUNAL the parties, or as a member of a national or
FOR THE LAW OF THE SEA international court or tribunal, or in any other
capacity (UNCLOS, Annex VI, Statute of ITLoS, Art.
International Tribunal for the Law of the Sea (ITLoS) 8[1]).
6. If for some special reason a member of the Tribunal
It is an independent judicial body established by the should not sit in a particular case:
Third United Nations Convention on the Law of the Sea a. Member should inform the President of the
that adjudicates disputes arising out of the Tribunal (UNCLOS, Annex VI, Statute of ITLoS,
interpretation and application of the Convention. It was Art. 8[2]); or
established after Ambassador Arvido Pardo Malta b. President should give the member notice
addressed the General Assembly of the United Nations accordingly (UNCLOS, Annex VI, Statute of
and called for “an effective international regime over the ITLoS, Art. 8[3]).
seabed and ocean floor beyond a clearly defined national
jurisdiction”. Its seat is in Hamburg, Germany. NOTE: Any doubt shall be resolved by decision of the
majority of other members of the Tribunal present
Part XV of the 1982 UN Convention on the Law of the Sea (UNCLOS Annex VII, Arbitration, Art. 7, 8).
requires States to settle peacefully any dispute
concerning the Convention. Failing a bilateral settlement, Members enjoy diplomatic privileges and immunities
it provides that any dispute shall be submitted for (UNCLOS Annex VII, Arbitration, Art. 10).
compulsory settlement to one of the tribunals having
jurisdiction (UNCLOS, Art. 286). These include the ITLos, Jurisdiction of the Seabed Dispute Chamber
the International Court of Justice (ICJ), and arbitral or
special arbitral tribunals constituted under the UNCLOS. The categories of its jurisdiction are the following:
1. Disputes between State Parties concerning the
The ITLoS is composed of twenty-one (21) independent interpretation or application of treaty or convention
members elected by the States partied to the UNCLOS may, in accordance with such agreement, be
from among persons with recognized competence in the submitted to the Tribunal.
field of the law of the sea and representing the principal 2. Disputes between a State Party and the Authority
legal systems of the world. concerning:
a. Acts or omissions of the Authority or of a State
Jurisdiction of the Tribunal Party alleged to be violations of the convention;
b. Acts of the Authority alleged to be in excess of
Its jurisdiction comprises all disputes and all jurisdiction of a misuse of power
applications submitted to it and all matters specifically 3. Disputes between parties to a contract, being State
provided for in any other agreement which confers Parties, the Authority or the Enterprise, state
jurisdiction to the Tribunal. enterprises and natural or juridical persons
concerning:
Rules with regard to membership in the Tribunal a. Interpretation or application of a relevant
contract or a plan of work;
1. No two members of the Tribunal may be nationals b. Acts or omissions of a party to the contract
of the same State (UNCLOS, Annex VI, Statute of relating to activities in the Area and directed to
ITLoS, Art. 3[1]). the other party or directly affecting its
legitimate interest.
NOTE: The person shall be deemed to be a national 4. Disputes between the Authority and a prospective
of the one in which he ordinarily exercises civil and contractor who has been sponsored by a State
political rights (Ibid). 5. Disputes between the Authority and a State Party, a
state enterprise or a natural or juridical person
2. There should be no fewer than three members from sponsored by a State Party
each geographical group to be established by the UN 6. Any other disputes for which the jurisdiction of the
General Assembly (UNCLOS, Annex VI, Statute of Chamber is specifically provided for in the
ITLoS, Art. 3[2]). Convention.
3. No member of the Tribunal may exercise any
political or administrative function, or associate Alternative means for the settlement of disputes
actively with or be financially interested in any of established by the Convention
the operations of any enterprise concerned with the
exploration for or exploitation of the resources of Aside from the ITLOS, it also established the
the sea or the seabed or other commercial use of the International Court of Justice, an arbitral tribunal
sea or the seabed (UNCLOS, Annex VI, Statute of constituted in accordance with Annex VII to the
ITLoS, Art. 7[1]). Convention and a special arbitral tribunal constituted in
4. No member of the Tribunal may act as agent, accordance with Annex VIII of the Convention.
counsel or advocate in any case (UNCLOS, Annex VI,
Statute of ITLoS, Art. 7[2]). THE WEST PHILIPPINE SEA CASE
5. No member of the Tribunal may participate in the
decision of any case in which he has previously Arguments of the Republic of the Philippines (RP):
taken part as agent, counsel or advocate for one of

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1. Declarations that the Philippines’ and China’s will generate, if at all, will not overlap with the
respective rights and obligations in regard to the Philippines’ own maritime entitlements.
waters, seabed, and maritime features of the South
china Sea are governed by the UNCLOS; and that The above reasoning will also determine whether China
China’s claims based on “historic rights” acted unlawfully with respect to the enjoyment of the
encompassed within its so-called “Nine-dash Line” Philippines of its rights, and the obligation to protect and
are inconsistent with the UNCLOS and therefore preserve the marine environment, within the disputed
invalid; areas. The Tribunal also acknowledged that other
2. Determinations as to whether, under the UNCLOS, findings on the merits may preclude its jurisdiction,
certain maritime features claimed by both states are where fishing and fisheries related law enforcement, and
properly characterized as islands, rocks, low tide military activities, may be in issue. With respect to the
elevations, or submerged banks. The Philippines Scarborough Shoal, however, the Tribunal found that the
claims in particular that Scarborough Shoal and exceptions under Article 297 and 298 cannot oust it of
eight of such features in the Spratlys are low-tide jurisdiction, given that the activities complained of
elevations or submerged banks that merely involve traditional fishing rights and other events
generate a territorial sea (TS), not an exclusive occurring in the territorial sea, a maritime area over
economic zone (EEZ) or continental shelf (CS); which the said provisions have no application.
3. Declarations that China has violated the UNCLOS by
interfering with the Philippines’ sovereign rights Finally, the Tribunal asked the Philippines to clarify the
and freedoms, through construction and fishing content and narrow the scope of its last submission,
activities that have harmed the marine requesting a declaration that “China shall desist from
environment. further unlawful claims and activities.”

Arguments of the People’s Republic of China (PRC): Tribunal’s Decision on the Merits of the Philippines’
Claim
China contested the Tribunal’s jurisdiction on the
following grounds: 1. The ‘nine-dash line’ and China’s claim to historic rights
1. That the essence of the subject-matter of the in the maritime areas of the South China Sea
arbitration is the territorial sovereignty over several
maritime features in the South China Sea (SCS), Whether China has historic rights to resources in the
which is beyond the scope of the Convention, and South China Sea beyond the limits of the maritime zones
does not concern the interpretation or application that it is entitled to pursuant to the Convention
of the Convention;
2. That the two countries have agreed, through • Based on the history of the Convention and its
bilateral instruments and the Declaration on the provisions concerning maritime zones, the Convention
Conduct of Parties in the SCS, to settle their relevant was intended to comprehensively allocate the rights of
disputes through negotiations. Thus, the States to maritime areas
Philippines’ resort to arbitration is a breach of its • The question of pre-existing rights to resources was
obligations under international law; considered during the negotiations on the creation of
3. Even assuming, arguendo, that the subject-matter of exclusive economic zone and a number of States wished
the arbitration were concerned with the to preserve historic fishing rights in the new zone: this
interpretation or application of the Convention, that position was rejected; the final text of the Convention
subject-matter would constitute an integral part of gives other States only a limited right of access to
maritime delimitation, which is covered by China’s fisheries in the exclusive economic zone and no rights to
2006 declaration excluding maritime delimitation petroleum or mineral resources
from its acceptance of compulsory dispute • China’s claim to historic rights to resources was
settlement procedures under the UNCLOS incompatible with the detailed allocation of rights and
maritime zones in the Convention: that China had
Award on Jurisdiction and Admissibility historic rights to resources in South China Sea waters,
such rights were extinguished when the Convention
The Tribunal found that the submissions of the entered into force to the extent that they were
Philippines did not per se involve disputes concerning incompatible with the Convention’s system of maritime
sovereignty or maritime boundary delimitation, which zones
are among the issues that may be excluded by States
from the subject-matter jurisdiction of compulsory Whether China actually had historic rights to resources in
dispute settlement procedures entailing binding the South China Sea prior to the entry into force of the
decisions under the UNCLOS. However, this exclusion of Convention
the issue of sovereignty or maritime boundary
delimitation is premised on the Philippines’ position that • Prior to the Convention, the waters of the South China
the features claimed by China belong to the Philippines; Sea beyond the territorial sea were legally considered
are low-tide elevations or rocks only that do not part of the high seas where vessels from any State can
generate either a Territorial Sea (TS), EEZ, or a fish and navigate
Continental Shelf (CS), or EEZ or a CS only; and that as • Historical navigation and fishing by China in the waters
such, in the case that any/some/all of these features are of the South China Sea were an exercise of high sea
found to belong to China, the maritime entitlements they freedoms rather than a historic right; there is no

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evidence that China had historically exercised exclusive Islands and Japanese fishing and guano mining
control over the waters of the South China Sea or enterprises) did not amount to inhabitation by a stable
prevented other States from exploiting their resources community and that all historical economic activity had
• Between the Philippines and China, there was no legal been extractive in nature
basis for China to claim historic rights to resources, in • All high-tide features in the Spratly Islands are legally
excess of the rights provided by the Convention, within “rocks” that do not generate an exclusive economic zone
the sea areas falling within the ‘nine-dash line’ or continental shelf
• The Convention does not provide for a group of islands
2. The status of features in the South China Sea (such as the Spratly Islands) to generate maritime zones
collectively as a unit
Whether certain coral reefs claimed by China are or are
not above water at high tide 3. Chinese activities in the South China Sea Lawfulness of
various Chinese actions in the South China Sea under the
• Articles 13 and 121: features that are above water at Convention
high tide generate an entitlement to at least a 12-nautical
mile territorial sea; features that are submerged at high • Because Mischief Reef, Second Thomas Shoal and Reed
tide generate no entitlement to maritime zones Bank are submerged at high tide and are not overlapped
• Many of the reefs in the South China Sea have been by any possible entitlement of China, they from part of
heavily modified by recent land reclamation and the exclusive economic zone and continental shelf of the
construction; the Convention classifies features on the Philippines; the Convention is clear in allocating
basis of their natural condition sovereign rights to the Philippines with respect to sea
• Evaluation of features based on the assistance of an areas in its exclusive economic zone
expert hydrographer and archival materials and • China had violated the Philippines’ sovereign rights
historical hydrographic surveys with respect to its exclusive economic zone and
-Scarborough Shoal, Johnson Reef, Cuarteron Reef, continental shelf: China had a) interfered with Philippine
and Fiery Cross Reef are high-tide features, and petroleum exploration at Reed Bank, b) purported to
-Subi Reef, Hughes Reef, Mischief Reef, and Second prohibit fishing by Philippine vessels within the
Thomas Shoal were submerged at high tide in their Philippines’ exclusive economic zone, c) protected and
natural condition failed to prevent Chinese fishermen from fishing within
-But Gaven Reef (North) and McKennan Reef are the Philippines’ exclusive economic zone at Mischief Reef
high-tide features and Second Thomas Shoal, and d) constructed
installations and artificial islands as Mischief Reef
Whether any of the features claimed by China could without the authorization of the Philippines
generate an entitlement to maritime zones beyond 12
nautical miles Traditional fishing at Scarborough Shoal

• Article 121 of the Convention: islands generate an • Fishermen from both China and the Philippines and
entitlement to an exclusive economic zone of 200 from other countries had long fished at the Scarborough
nautical miles and to a continental shelf, but rocks which Shoal and had traditional fishing rights in the area
cannot sustain human habitation or economic life of • Scarborough Shoal is above water at high tide so it
their own shall have no exclusive economic zone or generates an entitlement to a territorial sea, its
continental shelf — closely linked to the expansion of surrounding waters do not form part of the exclusive
coastal State jurisdiction and intended to prevent economic zone, and traditional fishing rights were not
insignificant features from generating large entitlements extinguished by the Convention
to maritime zones that would infringe on entitlements of • China had violated its duty to respect the traditional
inhabited territory or on high seas and the area of the fishing rights of Philippine fishermen by halting access to
seabed reserved for the common heritage of mankind the Shoal after May 2012
• Entitlements of a feature depend on the a) objective
capacity of a feature, b) its natural conditions to sustain Effect of China’s actions on the marine environment
either c) a stable community of people or d) economic
activity that is neither dependent on outside resources • China’s large scale land reclamation and construction
nor purely extractive in nature of artificial islands at seven features in the Spratly
• Even if many of the features are currently controlled by Islands has caused severe harm to the coral reef
one or other of the littoral States, which have environment
constructed installations and maintained personnel • China violated its obligations under Articles 192 and
there and have been modified to improve their 194 of the Convention to preserve and protect the
habitability (by land reclamation and construction of marine environment with respect to fragile ecosystems
infrastructure), the current presence of official personnel and the habitat of depleted, threatened, or endangered
on many of the features does not establish their capacity, species
in their natural condition, to sustain a stable community • Chinese fishermen were engaged in the harvesting of
of people and considered that historical evidence of endangered sea turtles, corals and giant clams on a
habitation or economic life was more relevant to the substantial scale in the South China Sea using methods
objective capacity of the features that inflicted severe damage on the coral reef
• Temporary of use of features (as in by small groups of environment; Chinese authorities were aware of these
Chinese fishermen and from other states in the Spratly

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and failed to fulfill their due diligence obligation under Madrid Protocol
the Convention to stop them
It is the Protocol relating to the Madrid Agreement which
Lawfulness of conduct of Chinese law enforcement vessels governs the system of international registration of
at Scarborough Shoal in April and May 2012 (Chinese marks. The system makes it possible to protect a mark in
vessels sought to physically obstruct Philippine vessels a large number of countries by obtaining an
from approaching or gaining entrance to the Shoal) international registration which has effect in each of the
Contracting Parties that has been designated.
• Assisted by an independent expert on navigational
safety and expert evidence on navigational safety Process for securing protection of marks through
provided by the Philippines international registration
• Chinese law enforcement vessels had repeatedly
approached the Philippine vessels at high speed and to NOTE: Any reference to an “office” shall be construed as
cross ahead of them at close distances, creating serious a reference to the office that is in charge, on behalf of a
risk of collision and danger to Philippine ships and Contracting Party, of the registration of marks, and any
personnel reference to “marks” shall be construed to pertain to
• China breached its obligations under the Convention on trademarks and service marks.
the International Regulations for Preventing Collisions at
Sea (1972), and Article 94 of the Convention concerning 1. Where an application for the registration of a mark
maritime safety has been filed with the Office of a Contracting Party
or registered in the register of the of the Office of a
4. Aggravation of the dispute between the parties Contracting party, the person in whose name that
application (basic application) or that registration
Whether China’s recent large-scale land reclamation and (basic registration) stands may, subject to the
construction of artificial islands at seven features in the provisions of the Madrid Protocol, secure protection
Spratly Islands since the commencement of the arbitration for his mark in the territory of the Contracting
had aggravated the dispute between the Parties Parties, by obtaining the registration of that mark in
the register of the International Bureau of the World
• Parties engaged in a dispute settlement procedure have Intellectual Property Organization, provided that:
a duty to refrain from aggravating or extending the where the basic application has been filed with the
dispute or disputes at issue during the pendency of the Office of a Contracting State or Organization or
settlement process where the basic registration has been made by such
• China has a) build a large artificial island on Mischief an Office, the person in whose name that application
Reef which is within the exclusive economic zone of the or registration stands is a national of that
Philippines, b) caused permanent harm to the coral reef Contracting State or of a State member of the
ecosystem, and c) permanently destroyed evidence of Contracting Organization, or is domiciled, or has a
the natural condition of the features in question real and effective industrial or commercial
• China violated its obligations to refrain from establishment, in the said Contracting State or State
aggravating or extending the Parties’ disputes during the member.
pendency of the settlement process 2. The application for international registration
(international application) shall be filed with the
5. Future conduct of the parties International Bureau through the intermediary of
the Office with which the basic application was filed
Philippines request for declaration that China shall respect or by which the basic registration was made, as the
the rights and freedoms of the Philippines and comply with case may be.
its duties under the Convention
Territory of a Contracting Party
• Both the Philippines and China have accepted the
Convention and general obligations of good faith define Where the Contracting Party is a State, the territory of
and regulate their conduct that State, and where the Contracting Party is an
• The root of the disputes at issue in this arbitration lies intergovernmental organization, the territory in which
not in any intention of any Party to infringe on the legal the constituting treaty of that intergovernmental
rights of the other but in the fundamentally different organization applies (Madrid Protocol, Art. 2).
understandings of their respective rights under the
Convention in the waters of the South China Sea The following may use the system:

(The Republic of the Philippines v. The People’s Republic of 1. A natural person; or

China, Case No. 2013-19 in the Permanent Court of 2. Legal entity having a connection, through
Arbitration Before the Arbitral Tribunal constituted under establishment, domicile or nationality, with a
UNCLOS Annex VII, July 12, 2016, case brief provided by UP Contracting Party to the Madrid Protocol or
Law Institute for Maritime Affairs and Law of the Sea) Agreement (Madrid Protocol, Art. 2).

MADRID PROTOCOL AND THE PARIS CONVENTION Effects on an international registration

FOR THE PROTECTION OF INDUSTRIAL PROPERTY

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The effects of an international registration in each all manufactured or natural products, for example,
designated Contracting Party are, as from the date of the wines, grain, tobacco leaf, fruit, cattle, minerals, mineral
international registration, the same as if the mark had waters, beer, flowers and flour, (Paris Convention, Art. 1).
been deposited directly with the Office of that
Contracting Party (Madrid Protocol, Art. 4).
INTERNATIONAL ENVIRONMENTAL LAW
Advantages of the Madrid system

Instead of filing many national applications in all It is the branch of public international law comprising
countries of interest, in several different languages, in "those substantive, procedural and institutional rules
accordance with different national procedural rules and which have as their primary objective the protection of
regulations and paying several different fees, an the environment," the term environment being
international application may be obtained by simply understood as encompassing "both the features and the
filing one application with the International Bureau products of the natural world and those of human
(through the Office of the home country), in one civilization.
language (either English or French) and paying only one
set of fees. Environmental concerns, related to Human Rights

Also, renewal entails simple payment of the necessary The protection of the environment is a vital part of
fees, every 10 years, to the International Bureau. contemporary human rights doctrine, for it is a sine qua
non for numerous human rights such as the right to
Likewise, if the international organization is assigned to health, and the right to life itself (Danube Dam Case, ICJ
a third party or any other change, such as a change in Rep 1997).
name and/or address, has occurred, this may be
recorded with effect for all designated Contracting PRINCIPLE 21 OF THE STOCKHOLM DECLARATION
Parties by means of a single procedural step.
Stockholm Declaration
Period of validity of international registration under
the Madrid Protocol The Stockholm Declaration, or the Declaration of the
United Nations Conference on the Human Environment,
10 years, with possibility of renewal under the was adopted on June 16, 1972 in Stockholm, Sweden. It
conditions set forth in Art. 7 thereof (Madrid Protocol, contains 26 principles and 109 recommendations
Art. 6). regarding the preservation and enhancement of the right
to a healthy environment.
Requirements for renewal of international
registration Principle 21 of the Stockholm Declaration

1. Renewal for a period of only 10 years from the This declares that States have:
expiry of the preceding period 1. The sovereign right to exploit their own resources
2. Payment of the basic fee pursuant to their own environmental policies, and
3. It must not bring about any change in the 2. The responsibility to ensure that activities within
international registration in its latest form (Madrid their jurisdiction or control do not cause damage to
Protocol, Art. 7). the environment of other States or of areas beyond
the limits of national jurisdiction or otherwise
NOTE: The International Bureau shall, by sending an known as the Good Neighborliness Principle
unofficial notice, remind the holder of the international (Sarmiento, 2007).
registration and its exact date of expiry six months
before the expiry of the term of protection. Principle 21 of the Stockholm Declaration is a part of
customary law
Moreover, a period of grace of 6 months shall be allowed
for such renewal (Madrid Protocol, Art. 7, pars. 3 & 4). The Court recognizes that the environment is daily under
threat and that the use of nuclear weapons could
Paris Convention on protection of industrial constitute a catastrophe for the environment. The court
property also recognizes that the environment is not an
abstraction but represents the living space, the quality of
It applies to industrial properties in the widest sense. It life and the very human beings, including generations
includes patents, marks, industrial designs, utility unborn. The existence of the general obligation of States
models, trade names, geographical indications and the to ensure that activities within their jurisdiction and
repression of unfair competition. control respect the environment of other States or of
areas beyond national control is now part of the corpus
Industrial property of international law relating to the environment (ICJ
Advisory Opinion on the Legality of the Threat or Use of
Shall be understood in the broadest sense, and shall Nuclear Weapons, July 8, 1996).
apply not only to industry or commerce proper, but
likewise to agricultural and extractive industries and to

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 PUBLIC INTERNATIONAL LAW
Principle of Common but Differentiated NAPOCOR. This was granted by the trial court. The
Responsibility Court of Appeals reversed the order, holding that the
proscription on injunctions against infrastructure
This principle requires the protection of specified projects of the government is clearly mandated by
environmental resource or area as common Sec. 1 of PD 1818. Is the issuance of a Writ of
responsibility but takes into account the differing Preliminary Injunction justified, despite the
circumstances of certain States in the discharge of such mandate of PD 1818?
responsibilities (Framework Convention on Climate
Change, Art. 3[1]). A: Whether there is a violation of petitioners’
constitutionally protected right to health is a question of
It is also embodied in the Rio Declaration which states: law that invested the trial court with jurisdiction to issue
“…In view of the different contributions to global a TRO and subsequently, a preliminary injunction. This
environmental degradation, States have common but question of law divests the case from the protective
differentiated responsibilities. The developed countries mantle of Presidential Decree No. 1818.
acknowledge the responsibility that they bear in the
international pursuit to sustainable development in view There is adequate evidence on record to justify the
of the pressures their societies place on the global conclusion that the project of NAPOCOR probably
environment and of the technologies and financial imperils the health and safety of the petitioners so as to
resources they command.” (Rio Declaration, Principle 7) justify the issuance by the trial court of a writ of
preliminary injunction. The health concerns are at the
PRECAUTIONARY PRINCIPLE very least, far from imaginary.

Principle 15 of the Rio Declaration, commonly known as In hindsight, if, after trial, it turns out that the health-
the Precautionary Principle states: related fears that petitioners cleave on to have adequate
confirmation in fact and in law, the questioned project of
In order to protect the environment, the precautionary NAPOCOR then suffers from a paucity of purpose, no
approach shall be widely applied by States according to matter how noble the purpose may be. For what use will
their capabilities. Where there are threats of serious modernization serve if it proves to be a scourge on an
damage, lack of full scientific certainly shall not be used individual’s fundamental right, not just to health and
as a reason for postponing cost-effective measures to safety, but, ostensibly, to life preservation itself, in all of
prevent environmental degradation. its desired quality (Hernandez v. NAPOCOR, G.R. No.
145328, March 23, 2006)?
NOTE: This principle advocates that the potential harm ---
should be addressed even with minimal predictability at
hand. The Precautionary Principle requires a high degree Polluter Pays Principle
of prudence on the part of the stakeholders. Decision
makers are not only mandated to account for scientific It means that the party responsible for producing the
uncertainty but can also take positive action, e.g., restrict pollutants must bear responsibility for shouldering the
a product or activity even when there is scientific costs of the damage done to the environment. It is
uncertainty. expressly stated in Principle 16 of the Rio Declaration on
Environment and Development: “National authorities
Under Rule 20 of the Rules of Procedure for should endeavor to promote the internalization of
Environmental Cases, the Precautionary Principle is environment costs and the use of economic instruments,
adopted as a rule of evidence. The Supreme Court’s taking into account the approach that the polluter
adoption of the Precautionary Principle in the newly should, in principle, bear the cost of pollution, with due
promulgated Rules of Procedure for Environmental regard to the public interest and without distorting
Cases affords plaintiffs a better chance of proving their international trade and investment” (Rio Declaration,
cases where the risks of environmental harm are not Principle 16).
easy to prove.
Other principles of International Environmental Law
--- set forth in the Rio Declaration
Q: NAPOCOR began constructing steel towers to
support overhead high tension cables in connection 1. States have the sovereign right to exploit their own
with its Sucat-Araneta-Balintawak Power resources pursuant to their own environmental
Transmission Project. Residents of Dasmariñas policies, and the responsibility to ensure that
Village were alarmed by the sight of the towering activities within their jurisdiction or control do not
steel towers and scoured the internet on the possible cause damage to the environment of other states or
adverse health effects of such structures. They got of areas beyond the limits of national jurisdiction
hold of published articles and studies linking the (Principle 2);
incidence of a fecund of illnesses to exposure to 2. Right to development must be fulfilled so as to
electromagnetic fields. The illnesses range from equitably meet development needs of present and
cancer to leukemia. future generations (Principle 3); and
3. In order to achieve sustainable development,
Petitioners filed a complaint for the Issuance of a environmental protection shall constitute an
TRO and/or a Writ of Preliminary Injunction against

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 POLITICAL LAW
integral part of the development process and cannot deliberate manipulation of natural processes the
be considered in isolation from it (Principle 4). dynamics, composition or structure of the earth
including its biota lithosphere, hydrosphere and
Long-Range Transboundary Air Pollution atmosphere or outer space (ENMOD, Art. II).

It means air pollution whose physical origin is situated 2. Prohibition of the employment of methods or means
wholly or in part within the area under the national of warfare which are intended, or may be expected,
jurisdiction of one State and which has adverse effects in to cause widespread, long-term and severe damage
the area under the jurisdiction of another State at such a to the natural environment (Protocol I Additional to
distance that is not generally possible to distinguish the the Geneva Convention of 1949, Art. 35(3)).
contribution of individual emission sources or groups of
sources (1979 Convention on Long-Range Transboundary Pollution
Air Pollution, Art. 1).
It means any introduction by man, directly or
Two Fundamental Principles of liability for indirectly, of substance or energy into the
transboundary pollution under international law environment resulting in deleterious effects of
such nature as to endanger human health, harm
a) First, a state must show material damage and living resources, ecosystem, and material
causation to be entitled to legal relief; and property and impair amenities or interfere
b) Second, a state has a duty to prevent, and may be with other legitimate uses of the environment
held responsible for pollution by private parties (Magallona, citing ILA Reports, Vol. 60, 1982).
within its jurisdiction if such pollution results in
demonstrable injury to another state (Trail Smelter
Case, US v. Canada, 1941).

Sustainable Development

It is a development that meets the needs of the present

without compromising the ability of future generations
to meet their own needs.

Principles that embody sustainable development

1. Principle of intergenerational equity – The need to

preserve natural resources for the benefit of future
generations.
2. Principle of sustainable use – The aim of exploiting
natural resources in a manner which is
"sustainable," or "prudent," or "rational," or "wise,"
or "appropriate."
3. Principle of equitable use or intragenerational equity
– The equitable use of natural resources, which
implies that use by one state, must take into account
the needs of other states.
4. Principle of integration – The need to ensure that
environmental considerations are integrated into
economic and other developmental plans, programs
and projects, and that development needs are taken
into account in applying environmental objectives.

Rules for the protection of the environment in armed

conflict

1. Each State Party undertakes not to engage in

military or other hostile use of environmental
modification techniques having widespread, long-
lasting or severe effects as the means of destruction,
damage or injury to any other Party State
(Convention on the Prohibition of Military or other
Hostile Use of Environmental Modification
Techniques or the Environmental Modification
Convention [ENMOD], Art. 1).

NOTE: Environmental Modification Techniques

refers to any technique for the changing through the

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